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SJC-09265
COMMONWEALTH vs. JASON ROBINSON.
Suffolk. February 6, 2023. – January 11, 2024.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.
Homicide. Felony-Murder Rule. Joint Enterprise. Robbery. Evidence, Joint enterprise, Statement of codefendant, Hearsay, Third-party culprit, Expert Opinion. Practice, Criminal, Capital case, New trial, Hearsay, Trial of defendants together, Instructions to jury, Argument by prosecutor, Sentence. Constitutional Law, Sentence.
Indictments found and returned in the Superior Court Department on September 27, 2000.
Following review by this court, 480 Mass. 146 (2018), a motion for a new trial was heard by Robert L. Ullmann, J., and a motion for reconsideration was also heard by him.
Rosemary Curran Scapicchio (Jillise McDonough also present) for the defendant. Paul B. Linn, Assistant District Attorney, & Cailin M. Campbell, Special Assistant District Attorney (John C. Verner, Assistant District Attorney, also present) for the Commonwealth. The following submitted briefs for amici curiae: Darina Shtrakham, of California, Matt K. Nguyen, of the District of Columbia, & Adam Gershenson for Jeffrey Aaron & others. 2
Jasmine Gonzales Rose, of Oregon, Duke K. McCall, III, & Douglas A. Hastings, of the District of Columbia, Robert S. Chang, of Washington, Caitlin Glass, Neda Khoshkoo, & Katharine Naples-Mitchell, for Boston University Center for Antiracist Research & others. Kenneth J. Parsigian, Avery E. Borreliz, Erin M. Haley, & Martin W. Healy for Carol S. Ball & others. Benjamin H. Keehn, Committee for Public Counsel Services, & John J. Barter for Committee for Public Counsel Services.
BUDD, C.J. Following a joint jury trial with his
codefendant, the defendant, Jason Robinson, was convicted of
murder in the first degree on a joint venture theory of felony-
murder, with armed robbery as the predicate offense, in
connection with the shooting death of Inaam Yazbek (victim).1
The defendant appeals from his convictions and from the denial
of his motion for a new trial, claiming that there was
insufficient evidence to convict him as well as reversible error
on the part of the Commonwealth and the judge. In the
alternative, he asks us to declare his life sentence without
parole to be unconstitutional because he was nineteen years old
at the time of the crime, based on Diatchenko v. District
1 The defendant also was convicted of unlicensed possession of a firearm as a coventurer, for which he received a sentence of from four to five years to run concurrently with his life sentence. However, as no evidence was presented that the defendant did not have a license to carry a firearm, the judgment as to this conviction must be reversed and the verdict set aside, so that the defendant may be retried. See Commonwealth v. Guardado, 493 Mass. 1, 7 (2023). 3
Attorney for the Suffolk Dist., 466 Mass. 655 (2013), and
sentence him to life with parole after fifteen years.
We affirm the defendant's conviction of murder in the first
degree, as well as the order denying his motion for a new trial.
After full consideration of the record, we further conclude that
extraordinary relief under G. L. c. 278, § 33E, is not
warranted. However, pursuant to our decision in Commonwealth v.
Mattis, 493 Mass. (2023), the defendant's sentence of life
without the possibility of parole is unconstitutional where he
was nineteen years old at the time of the offense of murder in
the first degree.2 We therefore remand this matter to the
Superior Court for resentencing on the charge of murder in the
first degree in accordance with that decision.3
Background. We summarize the facts as the jury could have
found them, reserving certain details for later discussion. On
March 27, 2000, the defendant was with codefendant Tanzerius
2 This case was paired with the one underlying Mattis, because, similarly to the defendant here, Mattis asked this court to consider whether a sentence of life without parole is constitutional when applied to those who committed their crime while under twenty-one years of age.
3 We acknowledge the amicus briefs on this issue submitted by seventeen neuroscientists, psychologists, and criminal justice scholars; Boston University Center for Antiracist Research, Fred T. Korematsu Center for Law and Equality, Center on Race, Inequality, and the Law, and Criminal Justice Institute at Harvard Law School; twenty-three retired Massachusetts judges, Boston Bar Association, and Massachusetts Bar Association; and Committee for Public Counsel Services. 4
Anderson, Joleena Tate (Anderson's girlfriend), Heather Coady,
and Edward Gauthier at Gauthier's home. While there, Tate asked
Anderson if he wanted to rob someone. She told Anderson that
she knew someone named "Yaz," who always carried a large amount
of cash and was a "passive" person who would not "put up a fight
if ever approached." After indicating that he was interested in
committing the robbery, Anderson called the defendant into the
room to ask him whether he was "down for a robbery." The
defendant agreed.
The trio planned that Tate would meet the victim and then
lead him to an apartment building in Brighton, where Anderson
and the defendant would ambush him. After having dinner with
the victim at a restaurant in Watertown, Tate asked him to drive
her to the designated location and, using the victim's cell
phone, sent "1145" to the defendant's pager to signal when she
would be at the appointed meeting place.
When Tate and the victim arrived, she led him into a
hallway of the building and then back out again, where they
encountered Anderson and the defendant. Tate said to the
victim, "[W]e're being robbed," and walked away. Anderson and
the defendant led the victim by his arms back into the building.
Once inside, Anderson told the victim to keep his hands up
and not to turn around to look at them. Anderson further told
the victim that he was going to be frisked for his belongings. 5
At that point, the victim began to plead with them and to reach
for a doorknob. Anderson told the victim to stop reaching. The
victim continued to plead and said that he was not a police
officer. Anderson then became "nervous" and shot the victim in
the back of the head. Anderson and the defendant ran out of the
building, got into Anderson's car with Tate, and drove away.
The defendant, who was seated in the back, was holding a cell
phone and wallet and began to count the cash inside the wallet.
When Tate asked Anderson what happened, Anderson replied,
"[H]e's murked," which Tate understood to mean dead. Anderson
also said, "I got my body for the summer." Anderson then
removed a gun from his right vest pocket and passed it to the
defendant. Anderson parked the car in a vacant lot, took the
gun from the defendant, hid it under a piece of construction
equipment, and drove away. Anderson returned to the lot later
that evening with Tate and the defendant, retrieved the gun, and
passed it to the defendant again. The Commonwealth did not
present evidence of a recovered gun to the jury.4
Hours later, a resident of the apartment building found the
victim outside the building lying in a pool of blood. The
medical examiner later determined that the cause of death was a
4 The prosecutor represented to the court, outside the presence of the jury, that no gun was ever recovered in this case. 6
single gunshot wound to the head, fired within one-half inch, or
closer, from the side of the victim's face.
We stayed the defendant's direct appeal in order for a
Superior Court judge to hear his motion for a new trial. After
the defendant's motion for a new trial was allowed, we reversed
that order on appeal and remanded for additional findings.
Commonwealth v. Robinson, 480 Mass. 146, 155 (2018). The motion
for a new trial ultimately was denied on all but one issue,
sufficiency of the evidence for the felony-murder conviction,
which was reserved for this court.
Discussion. 1. Sufficiency of the evidence. In order for
a jury to convict a defendant of joint venture felony-murder
with armed robbery as the predicate offense, the Commonwealth
must establish beyond a reasonable doubt that the defendant
participated in committing the armed robbery as a joint venturer
with the intent to commit that offense and that the victim was
killed in furtherance of that armed robbery. Commonwealth v.
Gallett, 481 Mass. 662, 673 (2019). To prove armed robbery, the
Commonwealth must prove that a defendant (1) was armed with a
dangerous weapon; (2) either applied actual force or violence to
the victim, or by words or gestures put the victim in fear; (3)
took the money or the property of the victim; and (4) did so
with the intent to steal it. Commonwealth v. Chesko, 486 Mass.
314, 320 (2020). Thus, to convict the defendant of armed 7
robbery by joint venture, the Commonwealth was required to show
that the defendant knew that Anderson was armed and that the
defendant assisted Anderson in committing the armed robbery
while sharing the intent to steal the property of the victim.
See Commonwealth v. Semedo, 456 Mass. 1, 11 (2010).
The defendant argues that the Commonwealth failed to prove
that he committed joint venture armed robbery (and consequently
failed to prove joint venture felony-murder) because there was
insufficient evidence that he knew Anderson was armed. For the
reasons discussed infra, we disagree.
In reviewing claims of insufficient evidence, we assess the
evidence in the light most favorable to the prosecution to
determine whether any rational trier of fact could have found
each element of the crime beyond a reasonable doubt.
Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). In so
doing, we keep in mind that "[p]roof of the essential elements
of the crime may be based on reasonable inferences drawn from
the evidence, . . . and the inferences a jury may draw need only
be reasonable and possible and need not be necessary or
inescapable." Commonwealth v. Kapaia, 490 Mass. 787, 791
(2022), quoting Commonwealth v. West, 487 Mass. 794, 800 (2021).
We conclude that, taken together, the evidence was
sufficient to permit an inference that the defendant knew that
Anderson would be armed when they committed the robbery. See, 8
e.g., Commonwealth v. Phap Buth, 480 Mass. 113, 118, cert.
denied, 139 S. Ct. 607 (2018); Commonwealth v. Rakes, 478 Mass.
22, 32-33 (2017). First, prior to the robbery, Anderson, the
defendant, and Tate planned that it would take place in the
hallway of an apartment building. The defendant's knowledge
that Anderson was armed therefore could be inferred, where a
weapon was likely to be of particular use to "persuade the
victim to surrender his property quickly and without resistance"
to avoid being seen by potential witnesses.5 Commonwealth v.
Colon, 52 Mass. App. Ct. 725, 728 (2001). See Commonwealth v.
Quinones, 78 Mass. App. Ct. 215, 220 (2010) (knowledge that
codefendant was armed inferred where robbery needed to be
effectuated quickly). In addition, neither Anderson nor the
defendant had a mask, and they therefore would need a weapon to
discourage the victim from looking at them.
Notably, the defendant and Anderson spent between one and
two hours together, after dropping Tate off to meet and spend
time with the victim before the robbery. It is reasonable to
infer that, during that period of time, the defendant and
Anderson discussed their plan further and that Anderson made the
5 The defendant contends that the evidence demonstrated that he would not expect that a weapon would be necessary because Tate told Anderson that the victim was "passive." However, the defendant was not present to hear this exchange, thus it is not probative as to whether the defendant knew that Anderson brought a gun to the robbery. 9
defendant aware of the gun. See Commonwealth v. Norris, 462
Mass. 131, 139-140 (2012) (defendant "had an opportunity to see
the gun earlier that evening on the trip" to site of robbery);
Commonwealth v. Netto, 438 Mass. 686, 703 (2003), citing
Commonwealth v. Tracy, 27 Mass. App. Ct. 455, 458 (1989).
Even assuming that the defendant was unaware that Anderson
had a gun until Anderson pulled it out, the defendant did not
withdraw from participation in the joint venture at that time.
Instead, the defendant had possession of a wallet and cell
phone, which the jury could infer belonged to the victim, when
he returned to Anderson's car. See Commonwealth v. Eagles, 491
Mass. 210, 219-220 (2023) (jury could infer that defendant had
requisite intent for armed robbery where, after learning of
coventurer's use of weapon, defendant continued to take victim's
valuables). "Where a defendant continues to act in furtherance
of the joint venture even after learning of a coventurer's
weapon, we have allowed an inference that the coventurer had the
requisite intent for the joint venture."6 Phap Buth, 480 Mass.
6 The defendant argues that Rosemond v. United States, 572 U.S. 65, 78 (2014), establishes a different standard, requiring that proof of a "defendant's knowledge of a firearm must be advance knowledge." Notwithstanding that the United States Supreme Court was interpreting a particular Federal criminal statute, 18 U.S.C. § 924(c), it went on to clarify, "Of course, if a defendant continues to participate in a crime after a gun was displayed or used by a confederate, the jury can permissibly infer from his failure to object or withdraw that he had such 10
at 117. Compare Commonwealth v. Mazariego, 474 Mass. 42, 48-49
(2016) (defendant guilty of joint venture where he remained at
scene with coventurer after crime), with Commonwealth v.
Fickett, 403 Mass. 194, 200-201 (1988) (evidence presented that,
if believed, would have raised reasonable doubt whether
defendant had withdrawn from joint venture where he explicitly
informed coventurer of his withdrawal from robbery plot).
The totality of the evidence, viewed in the light most
favorable to the Commonwealth, was sufficient to support the
jury's finding that the defendant intended to participate with
Anderson in an armed robbery of the victim. Where the
circumstances of the robbery gave rise to a reasonable inference
that a weapon would be needed, and where the evidence suggested
that the defendant did not withdraw from the venture after
Anderson drew the gun, the jury were permitted to infer that the
defendant possessed the requisite knowledge and intent to be
convicted of the predicate offense of armed robbery. There thus
was sufficient evidence to convict him of felony-murder.
2. Admission of codefendant's statements and acts. The
defendant argues that the admission of certain evidence over his
knowledge." Id. at 78 n.9. This is compatible with our case law. See, e.g., Phap Buth, 480 Mass. at 117. 11
objection unduly prejudiced him.7 For the reasons discussed
infra, we are not persuaded.
a. Before the shooting. The defendant suggests that
Tate's testimony regarding events involving only Tate and
Anderson had an adverse impact on the defendant. First, Tate
testified that, prior to the robbery, she and Anderson had
discussed a scheme Anderson had to rob drug dealers. She also
testified that, two days before the shooting, she and Anderson
had traveled to New Hampshire, broke into Tate's father's
condominium, and stole firearms and ammunition, including a .357
magnum revolver.
On appeal, the defendant does not specify how this evidence
was prejudicial to him. He was not implicated in either
Anderson's planned scheme to rob drug dealers or the theft of
the firearm. Moreover, at the time of Tate's testimony, the
judge provided limiting instructions emphasizing to the jury
that they could not consider evidence concerning one defendant
against the other unless they determined that the acts or
7 As the defendant objected to the admission of this evidence at trial, we review any erroneous admission of hearsay for prejudicial error and determine whether any error of a constitutional dimension was harmless beyond a reasonable doubt. See Commonwealth v. Wardsworth, 482 Mass. 454, 465 (2019). However, as discussed infra, we ultimately find no error in the admission of this testimony. 12
statements occurred during a joint venture.8 She reemphasized
this point in the final jury charge. As we presume that the
jury followed the judge's instructions, see Commonwealth v.
Sylvia, 456 Mass. 182, 195 (2010), the defendant was not
prejudiced by the admission of this evidence.
b. After the shooting. The defendant also challenges the
admission of various statements Anderson made after the
8 The judge instructed the jury:
"[B]efore you can consider any evidence of acts or statements allegedly made by one of the participants against the defendants here under a theory of joint venture, you first need to determine whether the Commonwealth has presented sufficient evidence which is independent of those acts or statements to support a fair inference that there was a joint venture between the participants and the defendants. . . . If you find that there was sufficient evidence to support a fair inference that a joint venture existed, then you can consider evidence of the acts and statements of each of the participants against the defendants."
The judge further instructed that only the "acts and statements occurring while the joint venture exists or made when the joint venturers were acting to conceal the crime, and that are relevant to the joint venture," could be so admissible. Although it would have been more accurate to instruct that only the acts and statements made "in furtherance of," as opposed to "relevant to," the joint venture were admissible, see Commonwealth v. Wilkerson, 486 Mass. 159, 175 (2020), the instructions nonetheless conveyed that only certain acts and statements -- those that were a part of the joint venture -- could be admissible against the defendant. See Commonwealth v. Kelly, 470 Mass. 682, 697 (2015) ("We do not require that judges use particular words, but only that they convey the relevant legal concepts properly"). 13
shooting. As discussed infra, we conclude that these statements
were properly admitted.
Tate testified that immediately after the shooting, when
she initially asked Anderson "what happened" to the victim, he
responded, "[H]e's murked," which she understood to mean that he
was dead. She further testified that days later Anderson
provided more details about the shooting that implicated the
defendant in the crime.9
Out-of-court statements, such as Anderson's, may be offered
to prove the truth of the matter asserted and are admissible
against a defendant if made by a coventurer "during the
cooperative effort and in furtherance of its goal." Mass. G.
Evid. § 801(d)(2)(E) (2023). See Commonwealth v. Wardsworth,
482 Mass. 454, 459-460 (2019). Before admitting such evidence,
however, a judge must make a preliminary determination, based on
a preponderance of the evidence, separate from the out-of-court
statement itself, that a joint venture existed between the
declarant and the defendant and that the statement was made
9 Because neither defendant testified, the details of the robbery and killing were presented at trial through Tate's testimony, which was based on this conversation with Anderson. 14
during and in furtherance of that venture.10 See Commonwealth v.
Samia, 492 Mass. 135, 142-144 (2023).
Anderson's statements describing the crime to Tate were
made immediately after the shooting and a few days later. There
was ample evidence from which to conclude that Tate was a joint
venturer, as she was a central party in the robbery's planning,
preparation, and execution. See Rakes, 478 Mass. at 40, citing
Commonwealth v. Bright, 463 Mass. 421, 436 n.21 (2012). Viewing
the evidence in the light most favorable to the Commonwealth,
these statements were made during and in furtherance of the
concealment of the joint venture, and thus were admissible
against the defendant.11 See Commonwealth v. Winquist, 474 Mass.
517, 523 (2016) ("appellate courts . . . have deemed admissible
statements made by joint venturers during the so-called
concealment phase of their criminal enterprise when such phase
is relatively close in time to the commission of the crime").
In making these statements, Anderson was sharing information
10Additionally, the jury also must be instructed that they may consider such statements as against a coventurer (here, the defendant) "only if they find that a joint venture existed independent of the statements, and that the statements were made in furtherance of that venture" (citation omitted). Commonwealth v. Winquist, 474 Mass. 517, 521 (2016).
11There is no question that Anderson's second statement describing the shooting occurred during the concealment phase of the joint venture, as Tate testified that Anderson also said at that time, "[A]s long as we stick to the story no one was going to be in trouble." Cf. Rakes, 478 Mass. at 41. 15
with a fellow joint venturer and revealed no details of the
crime to anyone outside the joint venture. Contrast
Commonwealth v. Santos, 463 Mass. 273, 291-292 (2012). The
judge did not abuse her discretion in admitting them. See
Winquist, supra at 521 ("A judge's determination as to the
existence and scope of a joint venture is reviewed under the
abuse of discretion standard").12
The defendant also argues that the statements Anderson made
to Tate, as well as a statement Anderson made to police
approximately one week after the robbery and killing, were
inadmissible in violation of Bruton v. United States, 391 U.S.
123 (1968). We disagree.
Under Bruton, "the introduction at a joint trial of a
nontestifying codefendant's statement, which names and
incriminates the other defendant, violates that defendant's
12The defendant references, in passing, statements that Anderson made in the presence of Coady. But neither these, nor statements Anderson made to Gauthier, were improperly admitted. While Anderson told Tate the details of the robbery and killing, Coady was sitting with the defendant about twenty feet away. The defendant, however, does not allege, and there is no evidence, that Coady heard Anderson's statements at that time. Although Anderson and the defendant later talked to Gauthier, the evidence clearly shows that the point of the discussion was, as Gauthier testified that Anderson had told him, to get Gauthier not to say anything more and "to stick to [his] story." See Commonwealth v. Steadman, 489 Mass. 372, 380 (2022) (joint venturer statements to third party admissible where statements were "an attempt to enlist [his or] her aid in concealing the crime"). 16
right to confront his accusers under . . . the Sixth Amendment
[to the United States Constitution]." Commonwealth v. Rivera,
464 Mass. 56, 69, cert. denied, 570 U.S. 907 (2013), citing
Bruton, 391 U.S. at 137. Such a statement that "expressly
implicate[s]" the defendant, leaving no doubt that it would be
"powerfully incriminating," is prohibited under Bruton (citation
omitted). Rivera, supra. A codefendant's statement that
becomes incriminating when linked with trial evidence is also
prohibited by Bruton, but only where the circumstances and
nature of the statement "so obviously implicate the defendant in
the crime itself as virtually to constitute direct
incrimination" (citation omitted). Id. at 70. Cf. Commonwealth
v. Blake, 428 Mass. 57, 60-61 (1998) (no Sixth Amendment issue
where statements referred to but did not inculpate defendant).
As an initial matter, the defendant's argument that
Anderson's account of the robbery and killing to Tate violates
Bruton is unpersuasive, as it hinges on an assertion that Tate
was not a part of the joint venture. See Commonwealth v.
Robertson, 489 Mass. 226, 232 (2022); Commonwealth v. DePina,
476 Mass. 614, 629 n.13 (2017). For the reasons explained
supra, we disagree with that premise.
The defendant also challenges the judge's admission of a
statement that Anderson made to police on April 4, one week
after the robbery and killing. But to the extent the defendant 17
argues that this evidence violated the prohibition on a
nontestifying codefendant's statement that implicates the
defendant in the crime, his argument mischaracterizes Anderson's
statement. The statement Anderson gave did, as the defendant
points out, place the two together on the day of the crime.
However, Anderson also explicitly denied being with the
defendant at any time during which the crime in question
occurred.13
Therefore, Anderson's "statements were not sufficiently
inculpatory to offend the defendant['s] Sixth Amendment rights."
Blake, 428 Mass. at 60. Anderson told the police that during
the time the crime actually occurred, he was not with the
defendant and that he thought the defendant had gone home.
"Even if we take the statement of [Anderson] to suggest that the
defendant['s] whereabouts were unknown to him around the time of
the shooting[]," the statement did not inculpate the defendant
in any concrete way. Id. at 62. See Commonwealth v. Vasquez,
462 Mass. 827, 843-844 (2012).
13Indeed, Anderson told the police that, on the night of the murder, he had been with the defendant earlier in the evening for a short time and gave the defendant a ride, but that he (Anderson) had dropped off the defendant and did not see the defendant again until the next day. Anderson further stated that he spent that night drinking beers with another friend approximately from 9 P.M. until 11 P.M., when he went to sleep. 18
Additionally, because Anderson's false statements to
police, made only a few days after the crime had occurred and
during the concealment phase of the joint venture, "were
designed to keep the police from discovering" that Anderson and
the defendant were involved in the victim's killing, these
statements were admissible as nonhearsay as well, as they were
made by a coventurer in furtherance of the joint venture's
concealment. Commonwealth v. Trotto, 487 Mass. 708, 721 (2021).
See Commonwealth v. Mavredakis, 430 Mass. 848, 863-864 (2000).
There was no error.
3. Severance. The rules of criminal procedure allow for
defendants to be joined in the same indictment "if the charges
against them arise out of the same criminal conduct or episode
or out of a course of criminal conduct or series of criminal
episodes so connected as to constitute parts of a single scheme,
plan, conspiracy or joint enterprise." Mass. R. Crim. P. 9 (b),
378 Mass. 859 (1979). Severance is appropriate, however, where
a defendant demonstrates that "(1) the defenses are antagonistic
to the point of being mutually exclusive, . . . or (2) the
prejudice resulting from a joint trial is so compelling that it
prevents a defendant from obtaining a fair trial" (quotations
and citations omitted). Commonwealth v. Siny Van Tran, 460
Mass. 535, 542 (2011). The defendant argues on appeal that the
judge abused her discretion in denying his motion to be tried 19
separately from Anderson, claiming that, as was apparent prior
to trial, the overwhelming evidence of Anderson's guilt spilled
over to inculpate him. We are not convinced.
The defendant does not suggest that his theory of the case
was incompatible with Anderson's. In fact, both defendants
focused on attacking Tate's credibility, pointing out the
inadequacy of the police's investigation, and suggesting the
existence of third-party culprits. Nor has the defendant
demonstrated that being tried with Anderson resulted in
prejudice so acute as to deprive him of a fair trial.
As discussed supra, evidence of Anderson's statements and
actions properly were admitted. See Commonwealth v. Clarke, 418
Mass. 207, 218-219 (1994) (severance not required where
codefendant's statements were admissible). We detect no
potential for "prejudicial spillover effect" where much of the
evidence admitted against Anderson was also admissible against
the defendant, and the jury were provided with appropriate
instructions as to how to view the evidence. Commonwealth v.
Helfant, 398 Mass. 214, 229-231 (1986). Contrary to the
defendant's assertions, the evidence against him clearly
established that he willingly agreed to participate in the joint
venture, was involved in its planning, and was present for its
execution. As a result, "a second proceeding" against the
defendant would have been "largely duplicative of the first." 20
Id. at 231. See Commonwealth v. Gaynor, 443 Mass. 245, 259-260
(2005). The judge did not abuse her discretion in denying the
defendant's motion to sever. See Commonwealth v. Watson, 487
Mass. 156, 168 (2021) (orders regarding severance are reviewed
for abuse of discretion).
4. Jury instructions. The defendant also argues that the
judge failed to instruct the jury that they were to consider the
evidence against each defendant separately,14 resulting in a
substantial likelihood of a miscarriage of justice.15 We
disagree.
During her preliminary instructions to the jury, prior to
opening statements, the judge explained that the Commonwealth
was required to "prove the guilt of each defendant." As
discussed supra, during the trial the judge gave limiting
instructions at appropriate points, admonishing the jury to
consider evidence relating to a particular defendant against
14Specifically, the defendant contends that the judge should have instructed the jury that (1) "they were to consider each element against each defendant separately," (2) "the fact that the defendants were on trial together is not evidence that there is any connection between them and is not any evidence of their guilt," and (3) they were "not to consider evidence of Anderson's bad acts (i.e.[,] the Commonwealth's claim that he had engaged in an uncharged robbery of a firearm) against [the defendant]."
15As the defendant neither requested these instructions nor objected to the instructions provided, any error is reviewed for a substantial likelihood of a miscarriage of justice. See Commonwealth v. Toolan, 490 Mass. 698, 705 (2022). 21
that defendant only unless they find sufficient evidence to
support that a joint venture existed, in which case the acts and
statements of coventurers done in furtherance of the joint
venture could be attributed to the defendant. See, e.g.,
Commonwealth v. Wilkerson, 486 Mass. 159, 175 (2020). Moreover,
during her final instructions, she repeatedly stated that the
jury were required to assess and carefully consider the evidence
as it related to each defendant individually.
Judges are "not required to grant a particular instruction
so long as the charge, as a whole, adequately covers the
issue."16 Commonwealth v. Teixeira, 490 Mass. 733, 742 (2022),
quoting Commonwealth v. McGee, 467 Mass. 141, 154 (2014). This
is especially true where, as here, the defendant did not request
instructions on this issue. As the judge's instructions were
entirely proper, there was no error and, thus, no substantial
likelihood of a miscarriage of justice.
5. Third-party culprit and Bowden evidence. The defendant
contends that the judge erred in excluding evidence relating to
two persons that he sought to present as third-party culprits
and as suspects whom police failed to investigate. See
16The fact that the jury found Anderson guilty of murder in the first degree on theories of extreme atrocity or cruelty and felony-murder, but found the defendant guilty of murder in the first degree on a theory of felony-murder only, suggests that they followed the judge's instructions to consider the evidence against each defendant separately. 22
Commonwealth v. Andrade, 488 Mass. 522, 532 (2021). We conclude
that no error occurred.
"Third-party culprit evidence is 'a time-honored method of
defending against a criminal charge.'" Commonwealth v. Silva-
Santiago, 453 Mass. 782, 800 (2009), quoting Commonwealth v.
Rosa, 422 Mass. 18, 22 (1996). A defendant generally is given
"wide latitude to the admission of relevant evidence that a
person other than the defendant may have committed the crime
charged." Silva-Santiago, supra at 800-801. However, the
evidence "must have a rational tendency to prove the issue the
defense raises[] and . . . cannot be too remote or speculative."
Id. at 801, quoting Rosa, supra. Additionally, if the third-
party culprit evidence constitutes hearsay that does not fall
within a hearsay exception, it is admissible if "the evidence is
otherwise relevant, will not tend to prejudice or confuse the
jury, and there are other 'substantial connecting links' to the
crime" (citation omitted). Silva-Santiago, supra. See
generally Mass. G. Evid. § 1105 (2023).
At trial, the defendant proffered that one person was a
possible third-party culprit because allegedly he had been
Tate's boyfriend, lived in the same development where the crime
occurred, and was "known by the police" to have been in
possession of two "three fifty-seven magnums" approximately one 23
month before the killing.17 The second person was alleged to
have lived in an apartment above Gauthier's, been present in
Gauthier's apartment on March 27, visited Tate at a boarding
school near the condominium from which the gun was taken, and
been friends with both Gauthier and Tate. Based on the
information provided, the judge excluded the third-party culprit
evidence, concluding that it did not provide "substantial
connecting links" between either person and the crime "so as not
to confuse the jury." This decision was not error, where the
proffered evidence had no rational tendency to prove that either
of the two was involved in the killing. See Andrade, 488 Mass.
at 532 (to be admissible, third-party culprit evidence "must
have a rational tendency to prove the issue the defense raises,
and [it] cannot be too remote or speculative" [citation
omitted]).
In addition to presenting third-party culprit evidence,
defendants may "base their defense on the failure of police
adequately to investigate a murder in order to raise the issue
of reasonable doubt as to the defendant's guilt." Commonwealth
v. Phinney, 446 Mass. 155, 165 (2006). See Commonwealth v.
Bowden, 379 Mass. 472, 485-486 (1980). Whether evidence of
17Aware of this, the police conducted fingerprint testing to see if this individual's prints matched those found in Tate's father's condominium. They did not. 24
shoddy police work may be admitted, however, is left to the
discretion of the trial judge. See Commonwealth v. Steadman,
489 Mass 372, 385 (2022); Silva-Santiago, 453 Mass. at 800-801.
Here, the defendant's argument that he was prevented from
presenting Bowden evidence fails based on the trial record. The
judge was clear in her ruling that she was only excluding third-
party culprit evidence and had not "excluded anything on
Bowden," so the defendant was "free to explore Bowden
[evidence]."
6. Commonwealth's opening statement and closing argument.
The defendant contends that errors made by the prosecutor in his
opening statement and closing argument warrant reversal.
Specifically, the defendant contends that the prosecutor
impermissibly appealed to the jurors' sympathy and improperly
vouched for Tate's credibility. As the defendant objected to
the remarks at issue, we review them to determine whether any
error was prejudicial. See Commonwealth v. Alemany, 488 Mass.
499, 511 (2021).
a. Appeals to sympathy. The defendant argues that the
prosecutor improperly appealed to the jurors' sympathy during
his opening statement in characterizing the victim's final
moments as spent "begging . . . for his life" and, as attributed
by defense counsel, describing the victim's face after the 25
shooting as being "ripped off."18 The defendant also takes issue
with the prosecutor having raised that one of the victim's
brothers was planning to visit the victim, but the victim was
killed before he arrived. Neither was error.
The prosecutor's description of the gunshot wound to the
victim's face made during opening statement was accurate based
on the evidence presented at trial.19 See Commonwealth v.
Barbosa, 477 Mass. 658, 670 (2017) (closing not improper where
"the prosecutor's description of the victim's murder was based
on the evidence and was relevant to establish the nature of the
crime"). Where the Commonwealth was proceeding, in part, on a
theory of extreme atrocity or cruelty,20 the "[d]etails regarding
18This word choice was an inaccurate characterization made by defense counsel when he objected at sidebar. The prosecutor never stated that the victim's face was "ripped off," but variously described the victim's face as having been "peeled off," "basically annihilated," and "blown off." We construe the defendant's argument on appeal as pertaining to all of these descriptions, as his objection at trial indicated.
19One witness testified that the victim's "face was distorted" and "wasn't attached," and another witness testified that it "wasn't . . . a pretty sight." The medical examiner described a laceration on the victim's face that was six inches long and about two inches deep. A police officer testified that, when he first observed the victim, he believed that the injury to the victim's face had been caused by "a machete or a hatchet" and not by a gun.
20Although the defendant ultimately was convicted only of felony-murder, the Commonwealth also proceeded against both the defendant and Anderson on theories of extreme atrocity or cruelty and deliberate premeditation. 26
how the victim died were relevant to the jury's determination as
to the manner of killing necessary to justify a conviction of
murder in the first degree." Commonwealth v. Henley, 488 Mass.
95, 132 (2021), citing Commonwealth v. Johnson, 429 Mass. 745,
748 (1999). Thus, the description of the extent of the victim's
injuries did not amount to error. See Commonwealth v. Martinez,
476 Mass. 186, 199 (2017), quoting Commonwealth v. Wilson, 427
Mass. 336, 350-351 (1998).
The same is true of the prosecutor's description of the
victim as begging for his life. Where the evidence suggested
that the victim had pleaded with Anderson and the defendant
while a gun was pointed at him, the prosecutor's description, if
enthusiastic, was based on the evidence. See Barbosa, 477 Mass.
at 670-671.
Nor did the mention of the victim's brothers constitute an
improper appeal to the jury's sympathy. A prosecutor may "tell
the jury something of the person whose life had been lost in
order to humanize the proceedings" (citations omitted).
Commonwealth v. Doughty, 491 Mass. 788, 797-798 (2023). The
prosecutor's comments, while "certainly sympathetic, . . . were
not excessive, nor were they the focal point." Commonwealth v.
Rodriguez, 437 Mass. 554, 567 (2002), citing Commonwealth v.
Degro, 432 Mass. 319, 326-328 (2000). Cf. Commonwealth v. Cheng
Sun, 490 Mass. 196, 210 (2022). They did not constitute error. 27
b. Vouching. During his closing argument, the prosecutor
told the jury that they would be able to see Tate's plea
agreement, which demonstrated that she was obligated "to tell
the truth" or "be prosecuted." The prosecutor also asked,
"[W]ith that obligation, what motivation is there for [Tate] to
lie?" The prosecutor then stated that "[t]here is no motivation
for [Tate] to do anything but to tell the truth in this case"
and that Tate had "no motive to lie." The defendant argues that
this constitutes vouching. We disagree.
Where a witness testifies pursuant to a plea agreement, a
prosecutor may not suggest that the government has special
knowledge of that witness's credibility. See Commonwealth v.
Webb, 468 Mass. 26, 31-32 (2014). However,
"[a] prosecutor may generally bring out on direct examination the fact that a witness has entered into a plea agreement and understands his [or her] obligations under it, but any attempts to bolster the witness by questions concerning his [or her] obligation to tell the truth should await redirect examination, and are appropriate only after the defendant has attempted to impeach the witness's credibility by showing the witness struck a deal with the prosecution to obtain favorable treatment."
Commonwealth v. Washington, 459 Mass. 32, 44 n.21 (2011), citing
Commonwealth v. Ciampa, 406 Mass. 257, 264 (1989).
This is exactly what happened here. On cross-examination,
trial counsel for both defendants asked Tate extensive questions
about her plea agreement with the Commonwealth in order to
impeach her credibility. Trial counsel for the defendant made 28
Tate's plea deal a central part of his closing argument,
suggesting that she lacked credibility. The prosecutor
responded to the attack on Tate's credibility by asking the jury
what motivation Tate had to lie, given that the government was
recommending a sentence for her of from eight to ten years. Cf.
Commonwealth v. Polk, 462 Mass. 23, 39-40 (2012). Although he
referenced Tate's plea agreement, the prosecutor stopped short
of suggesting that the government had "special knowledge by
which it can verify the witness's testimony."21 Webb, 468 Mass.
at 32, quoting Washington, 459 Mass. at 44 n.21. See Cheng Sun,
490 Mass. at 219. There was no improper vouching.
7. Ballistics expert evidence. The defendant argues that
the opinion testimony provided by the Commonwealth's ballistics
expert, Sergeant Detective Mark Vickers, that the victim's
injuries were consistent with the use of a high velocity weapon
and that a .357 magnum firearm is a "perfect example" of a high
velocity weapon, was unreliable and prejudicial. It was
neither.
Expert testimony is admissible if reliable, relevant, and
helpful to the jury in understanding matters "outside their
common experience." Commonwealth v. Hinds, 487 Mass. 212, 217-
21Moreover, during her final charge, the judge thoroughly instructed the jury to "examine . . . Tate's credibility . . . with greater caution than you would that of other witnesses." See Ciampa, 406 Mass. at 266. 29
218 (2021), quoting Commonwealth v. Shanley, 455 Mass. 752, 761
(2010). See Mass. G. Evid. § 702 (2023). "We review a judge's
determination to admit or exclude expert testimony . . . for an
abuse of discretion." Hinds, supra at 218, quoting Commonwealth
v. DiCicco, 470 Mass. 720, 729 (2015).
Here, the Commonwealth's expert, who was the head of the
Boston police department's ballistics unit at the time of his
testimony, based his opinion on his knowledge of firearms, his
observations of gunshot wounds to other individuals, the autopsy
report, and photographs of the victim's injuries. As the bases
for his opinion, Vickers pointed to, among other things, the
bullet's path, the type of laceration, and the presence of
bullet fragments rather than an intact bullet.
We note that, on cross-examination, Vickers testified that
he could not rule out that numerous other types of firearms,
including an automatic weapon, could have been used as the
murder weapon. In response to a question, however, he did
conclude that, based on the victim's injuries, a rifle had not
been used. In other words, Vickers did not express any view on
whether "a particular firearm" or type of firearm had been used;
rather, he "offer[ed] an opinion . . . that narrow[ed] the scope
of possible firearms" that could have been used as the murder
weapon. Commonwealth v. Pytou Heang, 458 Mass. 827, 848 (2011).
Given the expert's qualifications and experience, the judge did 30
not abuse her discretion in admitting the opinion testimony that
the victim's injuries, as well as the recovered fragments, were
consistent with the use of a high velocity firearm. See
Commonwealth v. McGee, 467 Mass. 141, 153 (2014) (no error in
admitting opinion "concerning the gun's membership in the class
of guns that could have" been murder weapon).
The defendant also argues that the expert's testimony was
unduly prejudicial to him because it potentially connected the
firearm stolen by Anderson and Tate to the shooting. We
disagree. The fact that a .357 magnum revolver is a "perfect
example" of a high velocity weapon merely demonstrated why the
expert's testimony was particularly relevant.22 See Commonwealth
v. Kindell, 84 Mass. App. Ct. 183, 187-188 (2013) ("the measure
of prejudice is not whether the evidence simply is adverse to
the party against whom it is offered").
8. Review under G. L. c. 278, § 33E. Finally, we have
reviewed the entire record and discern no basis upon which to
exercise our extraordinary authority under G. L. c. 278, § 33E.
Conclusion. For the foregoing reasons, the order denying
the motion for a new trial is affirmed. The judgment as to the
22We also note that the testimony was cumulative of other evidence suggesting that the stolen .357 magnum was used to kill the victim, including Tate's testimony that she saw Anderson with that firearm immediately after the shooting. See Commonwealth v. Lodge, 431 Mass. 461, 469 (2000). 31
defendant's conviction of unlicensed possession of a firearm is
reversed, and that verdict is set aside. The defendant's
conviction of murder in the first degree is affirmed, and the
matter is remanded for resentencing consistent with our decision
in Mattis, 493 Mass. at .
So ordered.