Commonwealth v. Rakes

• Court: Massachusetts Supreme Judicial Court
• Decided: September 29, 2017
• Docket: SJC 10046
• Status: Published

Opinion

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SJC-10046

COMMONWEALTH vs. JAMES M. RAKES.

Norfolk. April 7, 2017. - September 29, 2017.

Present: Gants, C.J., Lenk, Gaziano, Budd, & Cypher, JJ.

Homicide. Joint Enterprise. Grand Jury. Evidence, Grand jury proceedings, Exculpatory, Prior misconduct, Joint venturer, Hearsay, Statement of codefendant, Criminal records, Prison record. Criminal Records. Practice, Criminal, Capital case, Indictment, Grand jury proceedings, Fair trial, Argument by prosecutor, Instructions to jury.

Indictments found and returned in the Superior Court Department on April 1, 2002.

A motion to dismiss was heard by John C. Cratsley, J.; the cases were tried before Judith Fabricant, J., and a motion for a new trial, filed on November 6, 2013, was heard by her.

Alan Jay Black for the defendant. Tracey A. Cusick, Assistant District Attorney, for the Commonwealth.

LENK, J. In the summer of 1987, Jay B. Schlosser and his

girl friend, Heather Buchannan, were shot and killed in the

Westwood home they shared with John D. Sweeney. In 2005, the 2

defendant was convicted by a Superior Court jury as a joint

venturer on two counts of murder in the first degree on the

theories of felony murder, deliberate premeditation, and extreme

atrocity or cruelty. His coventurer, James P. Ridge, had been

tried separately at an earlier trial and had been convicted of

the victims' murders.1

The defendant appeals from his convictions and from the

subsequent denial of his motion for a new trial. He maintains

that the indictments should have been dismissed because the

evidence supporting them was insufficient and because the

Commonwealth's presentation impaired the integrity of the grand

jury by failing to disclose exculpatory evidence, introducing

prior bad acts, and commenting on the defendant's invocation of

his right to remain silent. As to the trial, the defendant

challenges the sufficiency of the evidence and claims structural

error and ineffective assistance of counsel in connection with a

purported court room closure during jury selection. He also

asserts error in the admission of certain hearsay evidence

concerning the joint venture, in the prosecutor's closing, and

in the jury instructions on reasonable doubt. He requests

relief under G. L. c. 278, § 33E. We affirm the convictions and

1 We affirmed James P. Ridge's convictions of two counts of murder in the first degree on all three theories, and affirmed the denial of postconviction relief. See Commonwealth v. Ridge, 455 Mass. 307 (2009). 3

the order denying the motion for a new trial, and, after careful

review of the record, decline to set aside the verdicts or

reduce the degree of guilt under G. L. c. 278, § 33E.

1. Background. We recite the facts that the jury could

reasonably have found, reserving certain details for later

discussion. The victims, Schlosser and Buchannan, were boy

friend and girl friend. Sweeney, the intended target of the

armed robbery underlying this case, had recently moved in with

the victims. The victims and Sweeney, along with Ridge, the

defendant's coventurer, and most of those involved in the events

surrounding the killings, were all part of the same social

circle, and all involved in the cocaine trade. The defendant

was not a member of that social circle, although Ridge knew him,

and Ridge's roommate, Kevin Trundley, knew who the defendant

was.

Most of the evidence presented at trial related to Ridge.

Sometime around 1986, Sweeney had convinced Ridge (a long-time

friend) and members of the Ridge family to invest $10,000 to

$15,000 in a business to retrieve treasure from a sunken ship in

the Caribbean. The business turned out to be a scam, and Ridge

and his family members lost all the money that they had invested

(as did Sweeney and members of his family). Sweeney pledged to

get Ridge his money back.

The promised reimbursement never materialized, other than 4

through Sweeney's efforts to pay Ridge back by giving him

cocaine free of charge. Ridge was angry that Sweeney appeared

to live in relative wealth while failing to pay Ridge the money

he felt he was owed. Trundley, a friend of both Sweeney and

Ridge, testified that Sweeney flaunted his wealth in Ridge's

presence. Ridge was "very upset about the way [Sweeney] was

living" in light of the slow repayment, and vowed to "get his

money" back.

In the months leading up to the killings, Ridge became

increasingly fixated on Sweeney. One witness testified that, at

some point, Ridge was at Sweeney's mother's house when Sweeney

was not present; he was shooting holes in Sweeney's shirts so

that Sweeney would not have nice clothes to wear.

Ridge began frequently asking various acquaintances where

Sweeney lived. At this time, Ridge was familiar with and had

access to firearms, and he regularly traveled with a duffel bag

containing "WD-40" metal lubricant, masks, and duct tape. On

multiple occasions, Ridge was seen loading firearms in a

peculiar manner: wearing gloves and spraying the bullets with

WD-40. Ridge contended that this method would ensure that he

left no traceable fingerprints. Roughly two months prior to the

killings, Ridge threatened Sweeney directly, saying he would

kill him if he did not receive his money.

Apparently in response to this threat, Sweeney left the 5

home he had previously shared with Trundley in the Jamaica Plain

section of Boston. He moved twice and ended up living in

Westwood with Buchannan and Schlosser, his partners in the

cocaine trade. Ridge, for his part, took Sweeney's place as

Trundley's roommate.

At some point Ridge learned, through Trundley, that Sweeney

had moved in with Schlosser and Buchannan. Approximately one

week before the killings, Ridge, Trundley, and their respective

girl friends drove past Sweeney's house. Both Trundley and his

girl friend testified that when passing the home, Ridge

instructed the driver to slow down. As the vehicle slowed to a

"crawl," Ridge slumped down in his seat and said he did not want

anyone to recognize him. He remarked that the house would be an

easy hit because of its location. Later that week, Ridge told

Trundley that he planned to rob Sweeney's house with a "brother

and sister" but refused to identify them.2 He explained further

that he planned the robbery for some time between 8 and 10 P.M.

on a rainy evening, when he expected the neighbors would have

their windows closed and would be watching television.

On June 25, 1987, Ridge told Trundley that the robbery

would take place that night. During the conversation, Ridge was

2 The Commonwealth argued that the robbery was committed by Ridge, the defendant, and the defendant's sister, Patricia Rakes. Patricia was scheduled to be tried jointly with the defendant, but pleaded guilty to manslaughter after the jury had been empanelled but before opening statements. 6

carrying the duffel bag that he regularly kept with him.

Trundley agreed with Ridge to provide a key to Sweeney's house,

but testified at trial that he had no such key and never

followed through on his promise. In addition, as Trundley

feared violence if Sweeney was in the house when the robbery

occurred, he persuaded Sweeney -- without explaining why -- to

leave his house and spend the evening with Trundley in Jamaica

Plain. The two men were joined by three women, and together the

group drank alcohol and consumed cocaine. At around 11 P.M.,

Sweeney and one of the women returned briefly to Sweeney's house

with plans to pick up more cocaine.3

Upon arriving, Sweeney saw the bodies of Schlosser and

Buchannan, bound in duct tape, on the couch. The whole house

looked as if it had been ransacked. An antique rifle belonging

to Schlosser lay in the kitchen, out of its normal storage

place, and there was a hole in the wall that, Sweeney testified,

had not been there earlier in the day. Sweeney left and

immediately returned to Jamaica Plain to meet Trundley. He did

not tell the woman with him what he had seen. Instead, on the

drive back, he telephoned Trundley and told him that the three

women would need to leave as soon as Sweeney arrived. They did

so. Sweeney then frisked Trundley, suspicious he may have been

3 Trundley testified that he permitted Sweeney to go back to his house at this point because he expected the robbery to have concluded. 7

involved in the killing. Finding no weapons, and apparently

thus satisfied, he then told him what he had seen. Sweeney next

telephoned a Federal Bureau of Investigation (FBI) agent he

knew. Early in the morning of June 26, Sweeney, Trundley, and

the FBI agent met and drove together to the Westwood police

station where they reported the victims' deaths. Police tested

Sweeney's hands for blood and found none. Officers were

dispatched to the house soon thereafter and found the victims'

bodies as described.

The police investigation revealed that the victims died as

a result of gunshot wounds. Buchannan was shot twice, including

once through the head, while Schlosser was shot once, with the

single bullet passing through his wrist and then entering his

skull. As mentioned, both victims were bound with duct tape

around the ankles, knees, and hands; their eyes, and Buchannan's

mouth, were also covered. Schlosser's mouth was not taped, but

there appeared to be duct tape residue around it, and there was

duct tape crumpled on the nearby coffee table. Two spent .38

caliber cartridges and three shell casings were found at the

scene. There were no eyewitnesses to the killing, the murder

weapon was never found, and there was no physical evidence

linking either Ridge or the defendant to the killing. Police

searched, but were not able to find any usable fingerprints.

There is no indication that police tested for deoxyribonucleic 8

acid (DNA); that method of identification was in its infancy at

the time.

Later that same day, Trundley and Sweeney drove to Cape

Cod. Sweeney called Ridge and asked him to join them, and Ridge

was driven down by Trundley's girl friend. On the drive, she

saw Ridge with a significant amount of cocaine despite the fact

that she knew him to be "broke" and unable to afford it at the

time. In addition, Ridge mentioned to her that he had to see

Trundley because "things didn't go right." The evening that

Ridge arrived, Trundley, who had expected only a robbery,

confronted him and asked, "Why did you kill those people?"

Ridge replied, "because she recognized me," and warned Trundley

to "keep [his] mouth shut." The next day, Sweeney and Trundley

went to retrieve Sweeney's vehicle, which he had allowed Ridge

to use, and found Ridge cleaning it out. Sweeney noticed a loan

coupon book in the vehicle, which he was certain he had left at

home on June 25. He abruptly took his vehicle back, and

immediately drove away alone, leaving Ridge and Trundley behind.

Trundley testified that, after learning of Ridge's

involvement with the murders, he "stayed away from him as much

as [he] could," but continued to speak to him on occasion. A

few weeks after their initial conversation, Ridge gave Trundley

a more detailed account of the robbery and the ensuing killings.

Ridge explained that when the robbers entered the home, 9

Schlosser grabbed an old rifle, but that "they beat him up, took

the rifle away, brought him into the living room, [and] duct

taped him."4 According to Ridge, Schlosser offered to give the

robbers whatever they wanted and further offered to withdraw

more money for them from the bank the following day. He pleaded

that "no one need[ed] to get hurt." As the robbers were about

to leave, "the person that [Ridge] went in there with said he

wasn't about to do any more time."5 Ridge responded, "I got you

into this, I'll get you out of this." He shot Buchannan twice

and subsequently shot Schlosser once. Ridge reported that,

although he stole some money and some cocaine from the home, he

did not get as much as he had hoped. He left some cocaine in

the home so that police would suspect that the murder was

related to drug sales, and be less interested in finding the

perpetrators.

Ridge again reminded Trundley to "keep [his] mouth shut."

He threatened to kill him should he tell police, and pointed out

that, as Trundley had aided in the preparation for the robbery,

he could face charges as a joint venturer. Ridge continued to

warn Trundley to stay silent over the course of the following

4 At that point, Ridge still had not identified the persons who participated in the robbery with him, but acknowledged that at least one other person was involved and used the plural repeatedly. 5 The defendant had been released on parole seventeen days prior to the killings. 10

year. Trundley appears to have heeded these warnings for some

time, but was cooperating with police by the summer of 1988.

Two out-of-court statements by Ridge and one by the

defendant himself linked the defendant to the killings. The

first was made by Ridge to Trundley sometime in late fall of

1987, several months after the murders. At the time, Trundley

felt threatened by certain persons from whom he was attempting

to collect a debt, and called Ridge for help. Ridge told him he

would "call up Rakesy and . . . come out there." Ridge

clarified that he was referring to "Jimmy Rakes" and that Rakes

was "the guy I did Westwood with."

The other inculpatory statements were made much later.

Ridge and the defendant were both indicted on April 1, 2002, and

arraigned in Superior Court the following day. They were

thereafter held in the Dedham house of correction. Ridge told

Mark Condon, an inmate who was being transferred between units

at the same institution, to "tell Rakes my end is tight." The

defendant also became friendly with Condon while incarcerated.

When Condon mentioned that he knew the reason for the

defendant's incarceration and had read about it in the

newspaper, the defendant replied, "It was the other guy [who]

shot them" while pointing toward Ridge's unit, and added that

"nobody planned on getting shot."

2. Discussion. a. Motion to dismiss. Prior to trial, 11

the defendant moved to dismiss the indictment on several

grounds, and he renews most of his contentions on appeal.

Specifically, he argues that the evidence before the grand jury

was insufficient to demonstrate probable cause, and that the

integrity of the grand jury was impaired both by the

Commonwealth's failure to present certain exculpatory evidence

and by inappropriate references to his criminal history and his

invocation of the right to remain silent. We discern no error

warranting dismissal of the indictments or reversal of the

convictions.

i. Insufficient evidence. The defendant first contends

that the indictment was not supported by sufficient evidence.

An appellate court reviews the sufficiency of the evidence

supporting an indictment in the light most favorable to the

Commonwealth. See, e.g., Commonwealth v. Levesque, 436 Mass.

443, 444 (2002). To sustain an indictment, the grand jury must

be presented with "sufficient evidence to establish the identity

of the accused . . . and probable cause to arrest him" for the

crimes charged (citation omitted). Commonwealth v. McCarthy,

385 Mass. 160, 163 (1982). Probable cause requires only

evidence "sufficient to warrant a reasonably prudent [person] in

believing that the [accused] had committed" the offense

(citation omitted). Id. at 163. "This standard . . . has been

employed primarily to strike down indictments in cases where a 12

grand jury has heard . . . no evidence whatever that would

support an inference of the defendant's" guilt (citation

omitted). Commonwealth v. Truong Vo Tam, 49 Mass. App. Ct. 31,

37 (2000).

In this case, the grand jury heard sufficient evidence to

warrant a finding of probable cause. Three witnesses linked the

defendant to the robbery and killing. Sergeant Richard Nagle of

the State police testified that he spoke to Michaelina Karos,

the defendant's girl friend at the time of the killings,

multiple times when investigating this case. According to a

conversation between Nagle and Karos in 1992, the defendant had

admitted his involvement to her soon after the victims' deaths.

The defendant told Karos that he "just killed two people

somewhere out in Marlborough or some fucking place," "a guy and

a girl," and that the victims had been tied up with duct tape.

He explained that he killed them to avoid being identified and

facing prison time for armed robbery. Trundley testified to a

conversation in which Ridge said that along with the defendant

and a woman, he robbed the victims of money and cocaine, bound

them with duct tape, and killed them. Finally, Mary Bergin, a

friend of the defendant, testified to a conversation with the

defendant's sister Patricia. Patricia said that she, the

defendant, and Ridge "taped [the victims] up . . . and they shot

them." 13

While the evidence before the grand jury consisted purely

of hearsay, "[w]e have consistently and without notable

exception held that 'an indictment may be based solely on

hearsay.'" Commonwealth v. Stevenson, 474 Mass. 372, 376

(2016), quoting Commonwealth v. O'Dell, 392 Mass. 445, 450-451

(1984). Only in "extraordinary circumstances" does the

exclusive reliance on hearsay so impair the grand jury

proceedings as to warrant dismissal. Stevenson, supra at 377.

We discern no such extraordinary circumstances in this case.

ii. Impairment of grand jury integrity through failure to

present exculpatory evidence. The defendant also argues for

dismissal of the indictments on the ground that the integrity of

the grand jury was impaired by the Commonwealth's failure to

present certain exculpatory evidence. See O'Dell, 392 Mass. at

449. Generally, "the mere withholding of exculpatory evidence

[from a grand jury] is not a proper ground for the dismissal of

an indictment." Commonwealth v. Pina, 406 Mass. 540, 549, cert.

denied, 498 U.S. 832 (1990). There are two exceptions to this

rule: if evidence was withheld in a manner that distorts the

meaning of the evidence admitted, or if the exculpatory evidence

was so powerful it would have severely undermined the

credibility of an important witness or likely have led the grand

jury not to indict. See Commonwealth v. Wilcox, 437 Mass. 33,

37 (2002); Commonwealth v. McGahee, 393 Mass. 743, 747 (1985); 14

O'Dell, supra at 449.

The defendant contends that two pieces of evidence could

have undermined the credibility of the witnesses before the

grand jury. Neither, however, was of sufficient significance to

require that it be introduced. First, the defendant argues that

the grand jury should have been told that Bergin admitted to

being under the influence of cocaine during her conversation

with Patricia Rakes. Nagle's police report indicates that

Bergin told him, "I remember it was the 80's because I was doing

[c]oke at the time . . . . [Patricia] came over . . . [Patricia]

was nervous/paranoid looking out the window. But at the time we

were all paranoid looking out the window[,] because we all did

coke." This statement does not indicate that Bergin was

intoxicated at the time of her conversation with Patricia.

Rather, it is best read as an acknowledgment by the witness that

she had used cocaine regularly in the years surrounding the

victims' deaths and, as a result, feared the possibility of

arrest. The admission of chronic drug use fifteen years prior

to her statement would not "greatly undermine" Bergin's

credibility or the Commonwealth's case. Cf. Commonwealth v.

LaVelle, 414 Mass. 146, 150-151 (1993) (even prior criminal

convictions of grand jury witness would not "greatly undermine"

credibility).

Second, the defendant claims that the grand jury should 15

have been told of Federal indictments against FBI Agent John

Connolly, whom Sergeant Nagle referenced. He argues that the

integrity of the proceedings were undermined by the failure to

disclose indictments for Connolly's offenses, including

obstruction of justice, racketeering, and conspiracy.6 This

evidence also need not have been placed before the grand jury.

Connolly was mentioned only briefly and in passing, and his

credibility was not relevant to the grand jury's determination.

Sergeant Nagle testified that he first heard the defendant's

name when "an FBI agent named Connolly . . . called . . . and he

said, 'The person you want to look at is James Rakes.'" The

subsequent investigation of the defendant, which led to the

inculpatory evidence placed before the grand jury, did not

involve Connolly at all.

iii. Impairment of grand jury integrity through evidence

of prior bad acts and reference to invocation of right to

silence. Before the grand jury, Nagle made certain references

to both the defendant's unrelated bad acts and his invocation of

the right to silence. Specifically, Nagle related three

statements that Karos ascribed to the defendant: that "he kills

people for money," that "his sister . . . introduced him to

6 The government contended that John Connolly committed these offenses in aid of the criminal enterprise led by James "Whitey" Bulger. See United States v. Connolly, 341 F.3d 16 (1st Cir. 2003). 16

Whitey Bulger when he was seventeen," and that she should always

"remember the five P's when you kill someone -- proper planning

prevents poor performance." Soon thereafter, however, the

prosecutor instructed the grand jurors that "you've heard some

testimony . . . [that] at least some of the individuals hav[e]

been involved in other crimes, and you should not use that in

your consideration of whether or not they committed these

particular crimes." Nagle also commented on the defendant's

invocation of his right to silence. He told the grand jurors

that he had asked the defendant about his relationship with

Ridge, and the defendant replied, "This is where I stop

answering questions." He added that, when confronted with

details of the murders during the interview, the defendant's

"eyes began to fill up with tears" and he stared at the floor.

To warrant reversal, the defendant must show not only that

the statements were inappropriate, but also that "viewed in the

context of all the evidence presented to the grand jury, [the

statements] 'probably made a difference,' in [the] decision to

indict" (emphasis added). Commonwealth v. Freeman, 407 Mass.

279, 283 (1990), quoting Commonwealth v. Mayfield, 398 Mass.

615, 621-622 (1986). On this record, the defendant cannot make

that showing. The appropriately admitted evidence was more than

sufficient to demonstrate probable cause. Moreover, the

prosecutor's clear and relatively contemporaneous instruction 17

presumably mitigated the prejudice from the introduction of

prior bad acts evidence. See, e.g., Commonwealth v. Jenks, 426

Mass. 582, 587 (1998). Testimony regarding the defendant's

invocation of his right to silence added little to the

Commonwealth's case, as the grand jury heard stronger evidence

of the defendant's consciousness of guilt in the form of his

confession to Karos.

b. Sufficiency of the evidence. The defendant contends

that there was insufficient evidence to convict him under any of

the three theories of murder in the first degree and that his

motion for a required finding should have been allowed. Because

the defendant was convicted as a joint venturer, we must

determine whether the evidence showed that he knowingly

participated in the commission of the crime charged, alone or

with others, with the intent required for the offense. See

Commonwealth v. Benitez, 464 Mass. 686, 689 (2013), citing

Commonwealth v. Zanetti, 454 Mass. 449, 467-468 (2009).7

7 Both parties cite the formulation of the joint venture standard that was commonly used in jury instructions prior to our decision in Commonwealth v. Zanetti, 454 Mass. 449 (2009). This standard asks whether a defendant was "(1) present at the scene of the crime, (2) with knowledge that another intends to commit the crime or with intent to commit a crime, and (3) by agreement, was willing and available to help the other if necessary" (citation omitted). Id. at 455. See, e.g., Commonwealth v. Green, 420 Mass. 771, 779 (1995). The test we apply today does not differ in substance from that one, but is simply intended to provide clearer guidance. Commonwealth v. Miranda, 474 Mass. 1008, 1008-1009 (2016). 18

To determine whether the Commonwealth met its burden, we

apply the familiar Latimore standard: whether viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt. See Commonwealth v.

Latimore, 378 Mass. 671, 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), overruled on other grounds by Commonwealth v. Britt,

465 Mass. 87, 100 (2003). A conviction may not, however, be

based on conjecture or speculation. See, e.g., Commonwealth v.

Gonzalez, 475 Mass. 396, 407 (2016). The defendant was

convicted under three theories, and we consider each in turn.

i. Felony-murder. The predicate felony alleged at trial

was armed robbery. To warrant a conviction of felony-murder as

a joint venturer with armed robbery as the predicate felony, the

Commonwealth had to prove that "the defendant was a joint

venturer in an armed robbery and that [the victims'] death

occurred 'in the commission or attempted commission of' that

[armed] robbery." Commonwealth v. Williams, 475 Mass. 705, 710

(2016), quoting G. L. c. 265, § 1. To find the defendant guilty

of the underlying felony of armed robbery, proof was required

that the defendant was part of a venture in which at least one 19

of the coventurers was armed with a dangerous weapon, either

applied violence to the victims' bodies or put them in fear, and

took the victims' property with the intent to steal it. Id.,

and cases cited. Absent proof that the defendant himself was

armed, proof that he knew his coventurer to be armed suffices to

satisfy the standard. Id.

Ridge's statements indicated that a group, including at

least one member who was armed, went to the house that Sweeney

shared with the victims with the intent to burglarize it. The

robbers bound the victims in duct tape and Ridge shot them. The

perpetrators then took money and cocaine from the home. The

jury could have inferred the defendant's participation in this

robbery from, among other things, the fact that Ridge identified

him as "the guy I did Westwood with."

The jury could further conclude that the defendant knew

Ridge to be armed. A jury can infer that a defendant knew his

or her coventurer to be armed in cases where the victims'

resistance can reasonably be anticipated, as the defendant is

presumed to recognize the need for a means by which to overcome

that resistance. Commonwealth v. Netto, 438 Mass. 686, 702-703

(2003), and cases cited. In this case, the victims were to be

robbed in their own home and were drug dealers. These factors

were sufficient for the jury to conclude that the defendant

would reasonably have expected the need to overcome resistance, 20

and therefore that he knew Ridge to be armed. See id. at 703

(robbery in victim's home); Williams, 475 Mass. at 711 (victim

was drug dealer); Commonwealth v. Housen, 458 Mass. 702, 708

(2011) (same). Even if the defendant had been unaware that

Ridge possessed a weapon in advance, it would be reasonable to

conclude that he became aware over the course of the robbery and

continued to participate, implicating him in the joint venture.

Williams, supra at 711, citing Commonwealth v. Norris, 462 Mass.

131, 140 (2012).

ii. Deliberate premeditation. Taken in the light most

favorable to the Commonwealth, the evidence was also sufficient

to sustain the conviction on the theory of deliberate

premeditation. Under this theory, the Commonwealth was required

to prove that the defendant caused the victims' deaths, that he

did so intentionally, and that he did so "after a period of

reflection." See Gonzalez, 475 Mass. at 406, quoting Model Jury

Instructions on Homicide 37 (2013). Because the defendant did

not carry out the killings himself, the Commonwealth had to show

that he participated in the killings, that he did so knowing of

his coventurer's intent to kill the victims, and that he shared

the necessary specific intent to kill. See Gonzalez, supra,

quoting Britt, 456 Mass. at 100-101. The defendant contends

that the Commonwealth failed to prove that he shared Ridge's

intent to kill, or that he deliberately premeditated the 21

victims' deaths.

The evidence supported the inference that the defendant

shared Ridge's intent to kill the victims. See Commonwealth v.

Nolin, 448 Mass. 207, 217 & n.11 (2007). A request that a

coventurer kill the victims demonstrates the specific intent to

kill. See, e.g., Commonwealth v. Cintron, 435 Mass. 509, 515-

516 (2001) ("shouted [at the shooter] to kill 'that cabron'"),

overruled on other grounds by Commonwealth v. Hart, 455 Mass.

230 (2009). Here, the jury reasonably could find that the

defendant's statement that he would not do "any more time" was

intended to communicate that message. It was made after the

robbery had been accomplished, to a man he knew to be armed, and

in the presence of the only possible witnesses, one of whom had

already identified Ridge. Cf. Norris, 462 Mass. at 139 (where

defendant, in altercation with victim, stepped away and called

for help from man he knew to be armed, jury could infer intent

that victim be killed).

The evidence also suggested that the defendant made his

decision to kill "after a period of reflection." Gonzalez, 475

Mass. at 406. No particular length of time of reflection is

required to find deliberate premeditation, and the decision may

be made in only a few seconds. See Commonwealth v. Whitaker,

460 Mass. 409, 419 (2011). The jury can infer premeditation

from the nature of the attack. See id. The evidence in this 22

case suggested that after having subdued, bound, and robbed the

victims, the defendant urged his coventurer to kill them in

order to avoid detection. This demonstrated the necessary

sequence of thought to support a finding of deliberate

premeditation. Cf. Norris, supra at 139.

iii. Extreme atrocity or cruelty. The judge also properly

denied the defendant's motion for a directed verdict on the

theory of extreme atrocity or cruelty. To warrant a conviction

under this theory, the Commonwealth was required to prove that

the defendant knowingly participated in the killing, that he

intended to cause death or grievous bodily harm or engaged in an

act a reasonable person would know created a plain and strong

likelihood of death, and that the killing was committed with

extreme atrocity or cruelty. See, e.g., Commonwealth v. Chhim,

447 Mass. 370, 377 (2006). The defendant need not have intended

that the killing be extremely atrocious or cruel. See id. at

379. For the reasons discussed, supra, the evidence established

that the defendant knowingly participated in the killings with

the necessary mental state.

The jury reasonably could infer that both killings were

committed with extreme atrocity or cruelty. The evidence

suffices to warrant a finding of extreme atrocity or cruelty if 23

it establishes one or more of the so-called Cunneen factors.8

See, e.g., Commonwealth v. Linton, 456 Mass. 534, 546 & n.10

(2010), citing Commonwealth v. Cunneen, 389 Mass. 216, 227

(1983). In this case the evidence warranted finding at least

one such factor: a degree of consciousness and suffering on the

part of each victim. After the victims' home was broken into by

two or more people, the victims were immobilized and blinded

with duct tape, and remained in each other's presence. The

robbery continued for some time while one of the victims

attempted to bargain with the robbers. "From the evidence, the

jury reasonably could have inferred that, in those . . . minutes

before [their] death[s], the victim[s were] terrified."

Commonwealth v. Anderson, 445 Mass. 195, 202 (2005).

c. Court room closure. The defendant contended in his

motion for a new trial that the judge improperly closed the

court room to spectators during empanelment of the jury, and

that his trial counsel was ineffective for failing to object.

The motion judge, who was also the trial judge, held an

evidentiary hearing and made written findings of fact

8 The factors are: (1) whether the defendant was indifferent to or took pleasure in the victim's suffering; (2) the consciousness and degree of suffering of the victim; (3) the extent of the victim's injuries; (4) the number of blows inflicted on the victim; (5) the manner and force with which the blows were delivered; (6) the nature of the weapon used; and (7) the disproportion between the means used to cause death and those employed. See Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983). 24

determining that the defendant had not met his burden to

demonstrate that the court room had been closed.9 See

Commonwealth v. Cohen (No.1), 456 Mass. 94, 107 (2010).

We accept as true the motion judge's findings of fact

absent clear error. See Commonwealth v. Greineder, 458 Mass.

207, 225 (2010), vacated on other grounds, 567 U.S. 948 (2012),

S.C., 464 Mass. 580, cert. denied, 134 S. Ct. 166 (2013).

Special deference is due where, as here, the motion judge was

also the trial judge. See id. The defendant's motion depended

primarily on testimony from his wife that she saw a "do not

enter" sign on the court room door and that a court officer

prohibited her from entering.10 The judge was not required to

credit the wife's testimony, and the judge articulated the

specific reasons that she did not. See Commonwealth v. DePina,

476 Mass. 614, 622 (2017). We discern no error in the judge's

findings or in her ruling that the defendant failed to meet his

burden to demonstrate that the court room had been closed. The

defendant's motion for a new trial was properly denied.

d. Admission of out-of-court statements. Over objection,

9 The motion judge also found that the defendant had waived the substantive issue of court room closure and that any ineffective assistance was not prejudicial. 10 The defendant's further contention that a member of his family was removed after passing a tissue to the codefendant is not borne out by the trial transcript, which indicates some discussion after the codefendant had been handed the tissue, but not that anyone was removed from the court room. 25

the judge admitted a series of out-of-court statements made by

Ridge recounting the robbery that led to the victims' deaths and

implicating the defendant. The defendant contends that these

statements constituted inadmissible hearsay.

"We recognize an exception to the hearsay rule whereby

statements by joint venturers are admissible against each other

if the statements are made both during the pendency of the

cooperative effort and in furtherance of its goal" (quotations

omitted). Commonwealth v. Bright, 463 Mass. 421, 426 (2012),

quoting Commonwealth v. Braley, 449 Mass. 316, 319 (2007). See

also Commonwealth v. Winquist, 474 Mass. 517, 520-521 (2016).

The justification for this rule is two-fold. First, it derives

from an analogy between a criminal joint venture and a lawful

partnership. Joint venturers, like business partners, are each

"an agent for the other in all matters relating to the common

object." Bright, supra at 426, quoting Commonwealth v. Tivnon,

8 Gray 375, 381 (1857). Second, the rule "is buttressed by

significant policy" considerations. Commonwealth v. White, 370

Mass. 703, 712 (1976). During the pendency of a joint venture,

the interests of the joint venturers are sufficiently aligned so

as "to assure that their statements about one another will be

[at least] minimally reliable." Id.

To admit the statement of a joint venturer, the judge must

make a preliminary determination, based on a preponderance of 26

the evidence, other than the out-of-court statement itself, that

a joint venture existed between the declarant and the defendant

and that the statement was made in furtherance of that venture.11

Bright 463 Mass. at 426; Commonwealth v. Cruz, 430 Mass. 838,

844 (2000). This determination permits the statement to be

placed in front of the jury, but does not suffice for the jury

to consider it as bearing on the defendant's guilt. The jury

must first make their own independent determination, again based

on a preponderance of the evidence other than the statement

itself, that a joint venture existed and that the statement was

made in furtherance thereof. Bright, supra at 427, 432. We

review the judge's decision to place a joint venturer's

statement before the jury for abuse of discretion. See, e.g.,

Winquist, 474 Mass. at 521.

The defendant challenges Ridge's statements, contending

that neither prerequisite was met. He argues that the

independent evidence did not show the existence of a joint

venture with the defendant, and that the statements were, in any

event, not made in furtherance of any such venture.

i. Existence of a joint venture. As an initial matter,

the judge did not abuse her discretion in finding that the

11 Alternatively, the statement may be admitted provisionally, subject to a motion to strike should the evidence presented through the course of the Commonwealth's case fail to establish the existence of a joint venture. Commonwealth v. Bright, 463 Mass. 421, 426 n.9 (2012), and cases cited. 27

independent evidence demonstrated a joint venture between Ridge

and the defendant. On appeal, we consider the evidence in the

light most favorable to the Commonwealth, to determine whether

the declarant and the defendant knowingly participated in the

commission of a crime together with the requisite intent. See

Winquist, 474 Mass. at 521, quoting Bright, 463 Mass. at 435.

In this case, Condon, who had been incarcerated with the

defendant, testified that when he mentioned the killings in

Westwood, the defendant responded "it was the other guy [who]

shot him" while pointing to Ridge's unit and added that "nobody

planned on getting shot." This testimony establishes, by a

preponderance of the evidence, that the defendant and Ridge were

involved in a joint venture that resulted in the victims'

deaths. Having so determined, we consider each of the

challenged statements to determine whether they were made

during, and in furtherance of, that joint venture.

ii. Specific statements. The defendant objects to the

admission of a statement from Ridge to Trundley from "days"

before the killing. In it, Ridge purportedly revealed the

details of his planned robbery, including his intention to

involve a brother and sister as accomplices and to execute the

robbery between 8 and 10 P.M. on a rainy night. Second, the

defendant challenges testimony regarding a series of threats in

which Ridge is said to have warned Trundley not to speak to 28

police. The first such threat was made one week after the

killings, and the last one was made approximately one year after

the killings. Third, the defendant challenges Trundley's

testimony that Ridge made a statement implicating the defendant

in late fall of 1987. Trundley testified that when he called

Ridge for help dealing with a threat, Ridge offered to "call up

Rakesy" and clarified that "Rakesy" was "Jimmy Rakes." When

Trundley asked, "What's he gonna to do?" Ridge responded, "He's

the guy I did Westwood with." Finally, the defendant challenges

the admission of Ridge's statement to Condon when Condon was an

inmate with both Ridge and the defendant. In that statement,

made nearly fifteen years after the killings, Ridge asked Condon

to "tell Rakes that my end is tight."

A. Statements from Ridge to Trundley. I. Statement

before the killing. The defendant challenges the admission of

statements from Ridge to Trundley, made a few days before the

killing, arguing that they predate any joint venture. We reject

this contention, as "[m]atters surrounding the history of the

conspiracy, including statements of coconspirators, may be

admissible even if they predate the conspiracy." Commonwealth

v. McLaughlin, 431 Mass. 241, 248 (2000), citing Commonwealth v.

Rankins, 429 Mass. 470, 473 (1999). The Commonwealth is

entitled to "show the whole history of the conspiracy" beginning

with "preparations made by [the principal]" (citation omitted). 29

Commonwealth v. Borans, 379 Mass. 117, 147 (1979). Therefore,

statements probative of the declarant's intent to enter into a

joint venture with the defendant to commit a crime may be

admitted under the joint venture exception.12 McLaughlin, supra

at 248. See also Rankins, supra at 474 (statement two years

prior to killings in which declarant expressed "disdain for her

husband" [the victim] admissible in prosecution of coventurer as

"relevant to whether there was a later conspiracy"). Here, as

in Rankins, even if the joint venture had not yet begun, Ridge's

statement that he expected to be accompanied by a brother and

sister was relevant to proving the existence of a joint venture

in the near future.

II. Warnings to stay silent. We turn next to the series

of threats Ridge made to Trundley in an attempt to ensure his

silence. These threats were communicated at various times over

the year following the murders. The defendant contends that any

joint venture had concluded before these statements were made,

and therefore they cannot have been made in furtherance of the

joint venture.

12 Ridge's statement also was admissible as a statement of the declarant's intent. "Statements, not too remote in time, which indicate an intention to engage in particular conduct, are admissible to prove the conduct was, in fact, put in effect." Commonwealth v. Ortiz, 463 Mass. 402, 409 (2012), quoting Commonwealth v. Avila, 454 Mass. 744, 767 (2009); Mass. G. Evid. § 803(3)(B) (2017). See Commonwealth v. Fernandes, 427 Mass. 90, 95 (1998) (statement of intent one week prior to crime admissible). 30

"Although [the joint venture] exception to the hearsay rule

'does not apply [to statements made] after the criminal

enterprise has ended . . . [it] does apply where the joint

venturers are acting to conceal the crime that formed the basis

of their enterprise.'" Commonwealth v. Raposa, 440 Mass. 684,

689-690 (2004), quoting Commonwealth v. Angiulo, 415 Mass. 502,

519 (1993). See Bright, 463 Mass. at 436 (statements made after

fact "to encourage [a potential witness] not to disclose facts

related to the murder" admissible [quotation and citation

omitted]). In this case, the threats from Ridge to Trundley

"were attempts 'to conceal the crime in furtherance of the joint

venture,'" Bright, supra at 436, quoting Braley, 449 Mass. at

330, and therefore properly admitted.13

III. Statement naming and implicating the defendant.

Next, we turn to Ridge's naming of the defendant as "the guy I

did Westwood with." The defendant argues that this statement

was not made in furtherance of any coventure. He contends that

Ridge merely shared information regarding the crime with a third

party. While we have expressed skepticism that disclosing the

circumstances of a crime to a third party can be considered to

be in furtherance of the crime disclosed, in this case Trundley

13 As we pointed out in Bright, 463 Mass. at 437, absent indication that the defendant had withdrawn from the joint venture "it is of no consequence" that he was not involved in the conversations. 31

was, himself, a part of the joint venture. He was aware of the

robbery, and helped in both the preparation for and concealment

of it. Cf. Bright, 463 Mass. at 436 n.21; Commonwealth v.

Colon-Cruz, 408 Mass. 533, 544 (1990).

Statements meant to ensure the silence of a coventurer, or

another involved in concealing the crime, are admissible as

furthering the joint venture. See Raposa, 440 Mass. at 690;

Commonwealth v. Hardy, 431 Mass. 387, 393-394 (2000), S.C., 464

Mass. 660, cert. denied, 134 S. Ct. 248 (2013). To be admitted,

the statement need not be necessary, or even important, to the

success or concealment of the joint venture, so long as it

advances the joint venture in some way. See United States v.

Ford, 839 F.3d 94, 106-107 (1st Cir. 2016). Cf. United States

v. Clark, 18 F.3d 1337, 1342 (6th Cir.), cert. denied, 513 U.S.

852 (1994) (statement to girl friend identifying coventurer

"induced her to conceal the crimes, to allow use of her

automobile to execute the robberies, and to allow use of her

home to plan the robberies," thereby furthering joint venture).

In this case, Ridge's offer of help, including his

identification of the defendant as a participant in the Westwood

robbery and killings, advanced the coventurers' shared goal of

concealing their crimes. It served to gain Trundley's loyalty,

and thereby, it was hoped, his silence. Trundley already knew

that Ridge and others had made their way into the victims' home 32

in an attempt to steal money and cocaine, and that when one of

the two victims recognized Ridge, he shot and killed both.14 To

evade detection, Ridge and his coventurers needed Trundley to

remain silent. To help ensure that silence, Ridge offered to

help Trundley confront an otherwise unrelated threat to safety.

Implicating the defendant in the Westwood murders was a

necessary part of the offer of assistance. Trundley had never

met and had no reason to trust the defendant. When Ridge first

offered the defendant's help, Trundley, apparently skeptical,

asked, "What's he gonna do?" By mentioning, in response, the

defendant's participation in an armed robbery and murder, Ridge

gave Trundley a reason to believe that the defendant was the

type of person who would be useful in confronting a potentially

violent situation. Consequently, the judge did not abuse her

discretion in finding the statement, in full, to be admissible.

B. Statement from Ridge to Condon in 2002. We turn

finally to Ridge's request to Condon, made almost fifteen years

after the crime, to "tell Rakes my end is tight."

To the extent the statement was hearsay,15 it falls within

14 While Trundley did not yet know the identities of the other coventurers, even his limited knowledge posed a threat to them. Police officers would be better able to identify the coventurers if the officers knew the details of the crime and Ridge's involvement. Therefore, all involved in the joint venture shared a common interest in his silence. 15 The Commonwealth contends that the statement was an operative statement, not offered for the truth of the matter 33

the exception for statements by a joint venturer. Typically,

statements deemed admissible as part of the concealment phase of

a joint venture have been made relatively close in time to the

commission of the crime. Winquist, 474 Mass. at 522-523.

However, "the relevant consideration is not whether the

statements of a joint venturer were made close in time to the

commission of a crime," but rather whether the attempt to

conceal was continuing. Id. at 523 (communications discussing

ways to neutralize potential witnesses demonstrates ongoing

effort to conceal two years after crime). Recalling the

reasoning behind the joint venture exception, we look to whether

the "joint venturers [continue to] share the commonality of

interests which is some assurance that their statements are

reliable." Id. at 522, quoting Colon-Cruz, 408 Mass. at 543.

In this case, the statement itself -- "tell Rakes my end is

tight" -- demonstrates that Ridge and the defendant "remained

actively engaged in an effort to conceal their . . . crimes."

Winquist, 474 Mass. at 523. The statement advanced that effort

by attempting to ensure that they would not testify against one

another, and by "sharing information" regarding the possible

testimony of others. Commonwealth v. Leach, 73 Mass. App. Ct.

758, 764 (2009) (incarcerated coventurers' discussion of need

asserted, and therefore not hearsay at all. No such limiting instruction was given at trial. 34

for silence). See also Winquist, supra. Moreover, the

interests of the joint venturers remained fully aligned. Both

faced trials in which the strength of the Commonwealth's case

would turn on the willingness of the same set of witnesses to

testify, as well as the willingness of either coventurer to

testify against the other. See Colon-Cruz, 408 Mass. at 545;

Leach, supra. Contrast Commonwealth v. Santos, 463 Mass. 273,

291 (2012) (statement seeking to exculpate declarant by

inculpating defendant); White, 370 Mass. at 706, 710-711 (the

same).16

To be sure, in many cases the commonality of interests that

justify the joint venture hearsay exception may dissipate over

an extended period of time. In each instance, then, the judge

must make a careful and fact-intensive determination before

admitting a joint venturer's out-of-court statements, and all

the more so when a significant period of time had passed between

the crime and the statement. See Winquist, 474 Mass. at 523.

16 Dicta suggesting that a joint venture ends once the declarant has been arrested and incarcerated is not to the contrary. See Commonwealth v. Santos, 463 Mass 273, 294 (2012); Commonwealth v. Angiulo, 415 Mass. 502, 519-520 (1993). Such dicta, never the basis of any decision, is predicated on the view that after apprehension, the commonality of interests among joint venturers gives way to self-interest. See Commonwealth v. Winquist, 87 Mass. App. Ct. 695, 703-704 (2015), S.C., 474 Mass. 517 (2016). This view has no application where, as here, the statement itself demonstrates that the declarant and the defendant continue to cooperate to conceal the crime in preparation for trial. See Commonwealth v. Leach, 73 Mass. App. Ct. 758, 764 (2009). 35

That was done here. In light of the specifics of this case, the

judge did not abuse her discretion when she determined that

Ridge and the defendant were continuing to work together

actively to conceal their crime when Ridge spoke to Condon in

2002.17

e. Records of prior incarceration. The Commonwealth moved

to introduce certain Department of Correction (DOC) records

demonstrating the defendant's prior incarceration. He had been

paroled seventeen days prior to the killings. It was the

Commonwealth's theory that after the defendant said he "wasn't

about to do any more time," Ridge killed the victims so they

could not testify against the defendant. The judge, after a

lengthy sidebar conference with counsel, allowed the

introduction of the defendant's certificate of parole, the

defendant's so called "VAX sheet," which is a computerized list

that details an inmate's movement amongst various correctional

institutions while in custody, and a page from the defendant's

booking sheet including photographs. The defendant concedes

that some documentation of his prior incarceration could have

been admitted. He contends, however, that a single document

17 The United States Supreme Court, in Grunenwald v. United States, 353 U.S. 391, 402 (1957), noted that extending the life of a joint venture could practically eliminate the statute of limitations in cases charging conspiracy. This concern has no application in this case, as there is no statute of limitations for murder. See Commonwealth v. Winquist, 474 Mass. 517, 525 (2016). 36

showing his release date would have been sufficient.

Evidence of a defendant's prior incarceration may be

admitted if it is offered for a purpose other than showing the

defendant's bad character or propensity to commit a crime, and

if its probative value outweighs the risk of unfair prejudice.

See, e.g., Commonwealth v. Crayton, 470 Mass. 228, 249 n.27

(2014); Mass. G. Evid. § 404 (b) (2017). The judge admitted the

DOC records to show the defendant's identity and the motive for

the killing, i.e., the defendant did not want to be sent back to

prison for his participation in an armed robbery. See

Commonwealth v. Brown, 462 Mass. 620, 628 (2012); Commonwealth

v. Barbosa, 457 Mass. 773, 793-794 (2010), cert. denied, 563

U.S. 990 (2011). She carefully reviewed the documents proffered

by the Commonwealth, and ordered significant redaction. Even if

further redactions may have been desirable, we see nothing in

the records admitted that warrants reversal.

The inmate history and certificate of parole were both

admitted to show the defendant's release date, and therefore his

motive for the killing. To the extent such duplication was

unwarranted, the admission of both documents did not prejudice

the defendant, as we are confident their admission "did not

influence the jury, or had but very slight effect." Braley, 449

Mass. at 326, quoting Commonwealth v. Flebotte, 417 Mass. 348,

353 (1994). Beyond the facts of the defendant's incarceration 37

and release, information the defendant concedes could properly

have been placed before the jury, the documents mentioned the

length of his sentence, the institutions in which he served that

sentence, and the conditions of parole. None of this

information was particularly inflammatory. Moreover, we presume

the jury followed the judge's detailed limiting instruction that

the evidence was not to be used to infer bad character or

criminal propensity. See, e.g., Brown, 462 Mass. at 628 (2012)

(discussing value of limiting instruction when evidence of prior

incarceration is admitted). See also Commonwealth v. Donahue,

430 Mass. 710, 718 (2000) (limiting instruction usually renders

improperly admitted evidence harmless).

The booking sheet, including photographs, was properly

admitted to show that the person referenced in the other

documents was the defendant. Therefore, it was appropriate for

the purpose of identification. Moreover, there is little

prejudicial about the booking sheet beyond the admissible fact

that the defendant had previously been incarcerated. Cf.

Commonwealth v. McCowen, 458 Mass. 461, 478 (2010) (evaluating

prejudice stemming from prior bad acts evidence "in the context

of the trial"); Commonwealth v. Bonds, 445 Mass. 821, 835 (2006)

(evaluating prejudice "[i]n light of the properly admitted"

evidence).

f. Prosecutor's closing argument. The defendant claims 38

three errors in the prosecutor's closing argument: that he

improperly appealed to jurors' emotions, that he impermissibly

vouched for the credibility of a Commonwealth witness, and that

he argued facts not in evidence. We consider each in turn.

i. Appeal to emotion. The prosecutor in his closing

argument related the last moments of one of the victims:

"[Schlosser] can't see what's going on, he's got that duct tape

over his face, but he knows what's coming next. He puts his

hands up in a defensive position, in desperation, maybe as he

begs for his life. In desperation he puts his hands up." The

defendant argues that this was an impermissible appeal to the

jurors' emotions.

The Commonwealth charged the defendant with Schlosser's

murder on a theory of extreme atrocity or cruelty. Schlosser's

emotional response was relevant, and the Commonwealth was

entitled to argue it in closing. See Commonwealth v. Barros,

425 Mass. 572, 581 (1997). See also Commonwealth v. Murphy, 426

Mass. 395, 402 (1998) (victim's emotional suffering relevant to

extreme atrocity or cruelty). The brief reference to his mental

suffering, relevant to an issue being tried, was presented in a

relatively straightforward manner, and "[t]he prosecutor . . .

did not . . . dwell on the potentially sympathetic material."

Commonwealth v. Evans, 439 Mass. 184, 195, cert. denied, 540

U.S. 923, and cert. denied, 540 U.S. 973 (2003). Compare Bois, 39

476 Mass. 15, 34 (2016) (five references to defendant as the

"monster[] that come[s] out at night" and prosecutor crying by

end of closing); Commonwealth v. Santiago, 425 Mass. 491, 494-

495 (1997), S.C., 427 Mass. 298 and 428 Mass. 39, cert. denied,

525 U.S. 1003 (1998) (seven references in closing to victim's

pregnancy in case not charging extreme atrocity or cruelty).

ii. Vouching. Defense counsel, in his closing, frequently

argued that Trundley was not to be believed because he was a

"drug dealer, a liar, and a thief."18 The prosecutor countered

by arguing:

"Now why would Kevin Trundley make up that portion of the statement? When Ridge finally tells Kevin Trundley who was with him, what motive does Kevin Trundley have against this man? He knew who he was; he had seen him around South Boston before. He had seen him around the same area as James Ridge before. He doesn't even really know him. Does he have any motive to come before you and implicate him, other than the truth? That's for you to decide, ladies and gentlemen. There is no reason why he would say 'Jimmy Rakes was the name given to me by James Ridge' if it wasn't the true."

18 Defense counsel began his closing argument, a bookend to his very similar opening statement, as follows: "A drug dealer, a liar, and a thief. Kevin Trundley is all of those things wrapped up in one phony package, propped up on the stand to sell you a bill of goods. He's a drug dealer, he's a liar, and he's a thief. . . . [H]e's trying to steal [the defendant's] liberty. He's trying to steal from you a true verdict. He is a drug dealer, he is a liar, and he is a thief." Much of the rest of the closing argument continued in this vein. Counsel concluded by telling the jury "you won't follow what a drug dealer, a liar, and a thief is asking you to do. You won't let him steal his way out of responsibility for whatever happened there, you won't let him steal a true verdict from you folks, and you won't let him steal this man's liberty." 40

A "prosecutor may marshal the evidence in closing argument

to 'urge the jury to believe the government witnesses.'"

Commonwealth v. Polk, 462 Mass. 23, 39 (2012), quoting

Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). This is

especially so when defense counsel has attacked the credibility

of a Commonwealth witness. In such cases, the prosecutor may

invite the jury to consider whether that witness had any motive

to lie. See Polk, supra at 39-40; Commonwealth v. Smith, 450

Mass. 395, 408, cert. denied, 555 U.S. 893 (2008). While the

prosecutor may argue on the basis of the evidence that a witness

should be believed, he or she may not imply "special knowledge

by which [he or she] can verify the witness's testimony."

Commonwealth v. Hardy, 431 Mass. at 396-397, quoting

Commonwealth v. Ciampa, 406 Mass. 257, 265 (1989). The

prosecutor did not suggest personal knowledge or exceed the

bounds of proper argument here; instead, he provided the jury

with reasons to credit the account of a key witness. We discern

no error.

iii. Facts not in evidence. Closing argument must be

limited to discussion of the evidence presented and the

reasonable inferences that can be drawn from that evidence.

Bois, 476 Mass. at 32, quoting Commonwealth v. Carriere, 470

Mass. 1, 22 (2014). Counsel may, however, zealously argue in

favor of those inferences favorable to his or her case. Bois, 41

supra at 32, quoting Carriere, supra. The inferences for which

counsel argues need not be necessary, or inescapable; they only

need be reasonable and possible. See, e.g., Commonwealth v.

Jones, 432 Mass. 623, 628 (2000); R.W. Bishop, Prima Facia Case,

§ 53.134 n.5 (5th ed. 2005).

The defendant contends that several statements made by the

prosecutor went beyond the evidence and the reasonable

inferences. First, the prosecutor suggested that no

incriminating fingerprints or DNA were left in the house because

the perpetrators of the killings wore gloves. While this

statement approached the fine line separating inference from

speculation, see Commonwealth v. Kozec, 399 Mass. 514, 517

(1987), it was nonetheless sufficiently tethered to the evidence

to be permissible. There was testimony that Ridge had, on other

occasions, used gloves and WD-40 to conceal his fingerprints

while loading a firearm. There also was evidence that he kept

items he used for this task in a bag similar to the one with

which he was seen the night of the murders. From this, it was

not "wholly implausible" to infer that Ridge used gloves for the

same purpose on the evening of the killings and convinced his

compatriot to do the same.19 Commonwealth v. Best, 23 Mass. App.

Ct. 943, 944 (1986). Cf., e.g., Bois, 476 Mass. at 32-33 (where

19 There was testimony that wearing gloves would both limit the deposit of deoxyribonucleic acid (DNA) at the scene and prevent fingerprints. 42

person in room adjacent to victim's bedroom did not wake due to

noise, permissible inference that victim encountered defendant

elsewhere in home); Commonwealth v. Semedo, 456 Mass. 1, 13

(2010) (where defendant shopped at store where victim worked,

permissible inference that they had interacted before).

Second, the prosecutor said that the robbers "asked

[Schlosser], having ripped that [duct] tape off his mouth,

'Where's the rest of [the money and cocaine]?'" The marks on

Schlosser's face, the crumpled duct tape on the coffee table

next to him, and Ridge's references to speaking with Schlosser

support the inference that at some point the duct tape over

Schlosser's mouth had been removed to talk to him. The

hypothetical dialogue presents a closer question. "[C]ounsel

may present an argument by dramatizing it in imaginary

dialogue," but that dialogue must remain "grounded in the

evidence" [citations omitted]. Commonwealth v. Pope, 406 Mass.

581, 587 (1990). There was evidence that the robbers intended

to steal money and cocaine, that they did not find as much as

they had hoped, and that Schlosser pleaded with them for a

chance to get more money before being killed. From this, it

could fairly be inferred that Ridge demanded more money and

cocaine from the victim.

In any event, even if the prosecutor's argument went too

far, we are confident that it did not have an impact on the 43

verdict.20 Closing argument is argument, not evidence, and

jurors are presumed to be capable of discounting excessive

claims. Kozec, 399 Mass. at 517. Moreover, the judge in this

case directly instructed the jurors not to credit statements

made by counsel if such statements conflicted with the jurors'

own memory of the evidence.21

g. Reasonable doubt instruction. The defendant argues

that the judge's instruction on reasonable doubt diminished the

Commonwealth's burden of proof. The judge instructed the jury,

"The Commonwealth is not required to prove the case to an

absolute, mathematical certainty. Mathematical certainty is

that level of certainty that you have if you add two and two and

arrive at four. The Commonwealth is not required to prove its

20 The parties dispute whether the defendant's objections to the closing argument were properly preserved. Even reviewing under the more searching standard -- prejudicial error -- we see no basis for reversal. See, e.g., Commonwealth v. Akara, 465 Mass. 245, 263 (2013). 21 We discern no merit in the defendant's remaining claims of improper argument. First, the defendant contends that no evidence supported the prosecutor's claim that "more than one" person was involved in subduing the victims. Trundley, however, testified that Ridge told him that "they" subdued the victims. Moreover, it would be reasonable to infer that multiple people were necessary to subdue and bind two adult victims. Second, Trundley's testimony that Ridge told him of a struggle over Schlosser's rifle was sufficient for the prosecutor to include this detail in closing argument. Third, the prosecutor's suggestion that the victims were killed because they were witnesses to the robbery was little more than a reformulation of Ridge's statements that he killed the victims because one recognized him and that he did so to prevent the defendant from "do[ing] any more time." 44

case to an absolute or mathematical certainty, but it must prove

each and every element of the charge beyond a reasonable

doubt."22 This instruction correctly stated the law, and

22 The reasonable doubt instruction in full was: "The third important principle that applies in all criminal cases is the standard of proof beyond a reasonable doubt. I've told you -- I've told you that the burden is on the Commonwealth to prove beyond a reasonable doubt that the defendant is guilty of the charges made against him.

"So what is proof beyond a reasonable doubt? The term is often used and probably pretty well understood, but it is not easily defined. Proof beyond a reasonable doubt does not mean proof beyond all possible doubt, for everything in the lives of human beings is open to some possible or imaginary doubt. A charge is proved beyond a reasonable doubt, if, after you have compared and considered all of the evidence, you have in your minds an abiding conviction, to a moral certainty, that the charge is true.

"I've told you that every person is presumed to be innocent unless and until he is proved guilty, and that the burden of proof is on the prosecution. If you evaluate all of the evidence and you still have a reasonable doubt remaining, the defendant is entitled to the benefit of that doubt and must be acquitted.

"It is not enough for the Commonwealth to establish a probability, even a strong probability, that the defendant is more likely to be guilty than not guilty. That is not enough. Instead, the evidence must convince you of the defendant's guilt to a reasonable and moral certainty, a certainty that convinces your understanding and satisfies your reason and judgment as jurors who are sworn to act conscientiously on the evidence. That is what we mean by proof beyond a reasonable doubt.

"The Commonwealth is not required to prove the case to an absolute, mathematical certainty. Mathematical certainty is that level of certainty that you have if you add two and two and arrive at four. The Commonwealth is not required to prove its case to an absolute or mathematical certainty, but it must prove each and every element of the charge beyond a reasonable doubt. 45

mirrored, nearly verbatim, instructions we have previously

upheld against constitutional challenge.23 In several cases, we

have explicitly approved of an instruction contrasting the

certainty necessary for a conviction with the greater certainty

of simple arithmetic. See, e.g., Commonwealth v. O'Brian, 445

Mass. 720, 731, cert. denied, 549 U.S. 898 (2006) ("[t]he

Commonwealth is not required to prove the case to a mathematical

certainty. Mathematical certainty is that level of certainty

you'd have if you add ten and ten at arrive at twenty");

Commonwealth v. Mack, 423 Mass. 288, 290 n.5 (1996) ("[t]he

Commonwealth is not required to prove the case to a mathematical

that you will have if you add two and two and arrive at four").

There was no error in giving the same instruction in this case.

h. Relief pursuant to G. L. c. 278, § 33E. We have

carefully reviewed the entire record, pursuant to our duty under

G. L. c. 278, § 33E. We see no reason to set aside the verdicts

or to reduce the degree of guilt.

"Now that does not mean that every fact about which there is testimony in this case must be proven to that standard. It is the elements of the crime charged that must be proven beyond a reasonable doubt, and I will tell you what those are shortly." 23 Approximately nine years after trial in this case, we mandated a standard reasonable doubt instruction in the exercise of our supervisory authority. Commonwealth v. Russell, 470 Mass. 464, 477-478 (2015). The decision in Russell was not retroactive and has no application here. See id. at 478-479. 46

Judgments affirmed.