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SJC-12166
COMMONWEALTH vs. AMADI SOSA.
Hampden. May 5, 2023. - November 30, 2023.
Present: Budd, C.J., Gaziano, Cypher, Kafker, & Georges, JJ.
Homicide. Armed Assault with Intent to Rob. Firearms. Due Process of Law, Accomplice testimony. Constitutional Law, Confrontation of witnesses. Evidence, Videotape, Joint venturer, Intent. Joint Enterprise. Intent. Practice, Criminal, Severance, Trial of defendants together, Cross- examination by prosecutor, Confrontation of witnesses, Instructions to jury, Capital case, New trial, Assistance of counsel, Motion to suppress. Search and Seizure, Expectation of privacy.
Indictments found and returned in the Superior Court Department on February 11, 2014.
The cases were tried before Daniel A. Ford, J.; a motion for a new trial, filed on August 23, 2019, was heard by Douglas H. Wilkins, J., and a motion for reconsideration was considered by him.
John M. Thompson (Linda J. Thompson also present) for the defendant. David L. Sheppard-Brick, Assistant District Attorney, for the Commonwealth. 2
GEORGES, J. This is a companion case to Commonwealth v.
Leiva, 484 Mass. 766 (2020). There, we affirmed the convictions
of Julio Brian Leiva, who was tried together with the defendant
for the shooting death of William Serrano during an attempted
robbery. Id. at 767, 769, 770 n.2. A Hampden County jury
convicted the defendant of murder in the first degree on
theories of deliberate premeditation and felony-murder, as well
as armed assault with the intent to rob and unlawful possession
of ammunition. Before us are the defendant's consolidated
appeals from his convictions and from the denial of his motion
for a new trial.
The defendant has asserted numerous errors. He contends
that the trial judge erred by (1) denying the defendant's motion
for relief from prejudicial joinder, or otherwise failing to
sever his trial from that of his codefendant, Leiva; (2)
allowing the prosecutor to use an unauthenticated video
recording during the course of trial; (3) denying the
defendant's motion for a required finding of not guilty on the
charge of murder in the first degree; (4) failing to instruct
the jury on an essential element of the charge of unlawful
possession of ammunition; and (5) failing to instruct the jury
on involuntary manslaughter. The defendant further contends,
with respect to his motion for a new trial, that the motion
judge erred both in failing to hold an evidentiary hearing and 3
in denying the defendant's motion. Finally, the defendant
requests relief pursuant to G. L. c. 278, § 33E.
We discern no reversible error with respect to the
defendant's convictions of murder in the first degree and armed
assault with the intent to rob. Additionally, after a thorough
review of the record, we decline to exercise our authority under
G. L. c. 278, § 33E. Accordingly, we affirm the defendant's
convictions of murder in the first degree and armed assault with
the intent to rob. We also affirm the denial of the defendant's
motion for a new trial. However, because of an error in the
jury instructions, the defendant's conviction of unlawful
possession of ammunition must be vacated.
1. Background. a. Facts. We summarize the facts the
jury could have found, reserving further discussion of the facts
for our analysis infra.
On November 10, 2013, the day of the shooting, the victim
joined his girlfriend for dinner at her sister's residence in
Springfield. About twenty minutes after the couple arrived,
Leiva joined them, uninvited. Leiva and the victim's girlfriend
had previously dated, ending their relationship about six months
prior to the shooting; they remained friendly after their
relationship ended.
Leiva stayed in the kitchen for about thirty minutes,
eating and sending text messages on his cell phone before 4
abruptly leaving and returning about fifteen minutes later.
After another ten to fifteen minutes had passed, Leiva departed
again. He left through the back door of the house onto a small
porch where he passed by the victim, who was seated in a chair
with the girlfriend on his lap. Leiva, the victim, and the
girlfriend were the only people on the porch.
The girlfriend observed the defendant walk down the porch
stairs, then around to the right, where he disappeared behind
the porch. A few minutes later, Leiva reemerged from behind the
porch, followed closely by two men in dark sweatshirts with
raised hoods. The girlfriend recognized one of the men as the
defendant, a friend of Leiva, whom she had known for over six
months and with whom she frequently socialized. As the three
men approached the porch steps, the girlfriend could see that
Leiva was carrying what appeared to be a shotgun or rifle with a
sawed-off barrel.1 She had previously seen this same gun at the
defendant's residence.
Coming onto the porch, Leiva first pointed the barrel of
the gun at the girlfriend, who was attempting to block the top
of the stairway. The three men pushed past her and surrounded
the victim, with Leiva now aiming the gun at the victim's chest.
Leiva then instructed the other two men to "run his pockets," at
1 Police never recovered the gun used by Leiva. 5
which point the two men bent over to reach into the victim's
pockets. Although the girlfriend did not see what, if anything,
they retrieved, the victim was in possession of two cell phones
earlier that evening, and only one was discovered among the
victim's belongings.
When the victim, who was still seated in the chair, pleaded
to be left alone, Leiva shot the victim seven times. The
defendant and the other man stood on either side of Leiva,
looking on while facing the victim as the shots rang out.
Hearing the gunshots, the girlfriend's sister called 911.
Several minutes later, a responding officer entered the sister's
living room and found the victim, who, while screaming and
bleeding, had managed to crawl inside. The victim was
transported to the hospital, where he later died in surgery.
After leaving the area, Leiva explained to a friend that he
"went to go rob somebody" while he was with two associates but
that things went wrong.
b. Procedural history. In February 2014, a Hampden County
grand jury indicted the defendant for murder in the first
degree, G. L. c. 265, § 1; armed assault with intent to murder,
G. L. c. 265, § 18 (b); armed robbery, G. L. c. 265, § 17; armed
assault with intent to rob, G. L. c. 265, § 18 (b); and unlawful
possession of ammunition, G. L. c. 269, § 10 (h). 6
The defendant's joint trial with his codefendant, Leiva,
commenced in January 2016. Before trial, defendant's counsel
filed a motion for relief from prejudicial joinder, seeking to
sever the two cases on the grounds that the defenses would be
antagonistic. The trial judge denied this motion. At the close
of the Commonwealth's case, the trial judge allowed the
defendant's motion for required findings of not guilty as to the
charge of armed assault with intent to murder but otherwise
denied the motion with respect to the remaining charges.
The jury acquitted the defendant of armed robbery but found
him guilty of murder in the first degree on theories of
deliberate premeditation and felony-murder with attempted
commission of armed robbery as the predicate felony, guilty of
armed assault with the intent to rob, and guilty of unlawful
possession of ammunition.
The defendant timely appealed. While his direct appeal was
pending, the defendant filed a motion in this court for a new
trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435
Mass. 1501 (2001). We remanded the defendant's motion to the
Superior Court. After an evidentiary hearing, the motion judge,
who was not the trial judge, denied the defendant's motion. The
defendant's motion to reconsider was likewise denied.
Thereafter, the defendant appealed from the denial of his motion
for a new trial, which we consolidated with his direct appeal. 7
c. The trial. At trial, the Commonwealth proceeded
against the defendant as a joint venturer with Leiva in the
armed robbery and murder of the victim. In support of its
theory, the Commonwealth primarily relied upon the girlfriend's
testimony concerning the events that evening, including
identifying the defendant as one of the other two men involved
in the shooting. See Leiva, 484 Mass. at 769-770. The
girlfriend's timeline of events was corroborated by surveillance
footage that was recorded at an apartment building where Leiva
would frequently stay while visiting Springfield, which depicted
Leiva at various points on the evening of the shooting.2 Id. at
768, 770.
Additionally, the Commonwealth's ballistics expert opined
that seven shell casings recovered from the crime scene had been
fired from the same weapon, as were five bullets recovered from
the scene of the shooting and the victim's body. Id. at 770-
771. The police seized from the defendant's residence live
rounds of ammunition of the same caliber and bearing the same
manufacturer's markings as the shells recovered from the crime
scene. Id.
The defendant's primary defense was that he had been
misidentified. In support of this theory, counsel for the
The apartment building was approximately a two-minute walk 2
from the sister's residence. 8
defendant pointed to numerous factors in his closing, including
the girlfriend's mistaken identification of the defendant due to
her focus on the gun, the darkness of the setting, and the
presence of hoods on Leiva's associates, as well as the
girlfriend's mistaken identification of another of Leiva's
associates.
The defendant himself did not testify; Leiva, however,
did -- in narrative form -- which the judge permitted him to do
pursuant to Mass. R. Prof. C. 3.3 (e), as appearing at 471 Mass.
1416 (2015) (rule 3.3 [e]). See Leiva, 484 Mass. at 771–773.
The judge also prohibited counsel from referencing the
invocation of rule 3.3 (e) and strongly cautioned them against
examining Leiva on this topic. Leiva testified that, while he
had visited the sister's residence on the day of the shooting,
he left to purchase some marijuana, did not see the defendant,
and did not shoot the victim. Id. at 771.
2. Discussion. a. Standard of review. "Where we
consider, as we do here, a defendant's direct appeal from a
conviction of murder in the first degree together with an appeal
from the denial of a motion for a new trial, we review the whole
case under G. L. c. 278, § 33E." Commonwealth v. Goitia, 480
Mass. 763, 768 (2018). "Where the claims are preserved, we
review for prejudicial error" (quotation and citation omitted).
Commonwealth v. Gamboa, 490 Mass. 294, 299 n.8 (2022). For 9
claims that are unpreserved, and for "other errors we discover
after a comprehensive review of the entire record, [we review]
for a substantial likelihood of a miscarriage of justice."
Commonwealth v. Upton, 484 Mass. 155, 160 (2020).
b. Severance of the codefendants' trials. The defendant
first argues that severing his trial from the trial of his
codefendant, Leiva, was constitutionally required to protect his
due process rights and his right to confrontation,3 and that the
trial judge's denial of his motion for relief from prejudicial
joinder was otherwise an abuse of discretion. These arguments
center on Leiva's testimony pursuant to rule 3.3 (e).
We have previously concluded that "[t]he procedures used to
implement rule 3.3 (e) at the . . . trial were proper" and that
the trial judge's "rulings relative to the form of [Leiva]'s
testimony . . . did not constitute error." Leiva, 484 Mass. at
784–785. Nonetheless, we reexamine the propriety of this
procedure and testimony in the context of the nontestifying
defendant's severance arguments.4
3 Because, as we conclude infra, there was no error, we need not reach the defendant's argument that the alleged errors were structural. See Commonwealth v. Scott, 470 Mass. 320, 337 n.15 (2014).
4 We decline to hold, as the defendant insists, that rule 3.3 (e) is "designed solely for use in single-defendant trials." Because the defendant cites no legal authority in support of this proposition and presents it in cursory fashion, 10
i. Due process. The defendant asserts that severance was
constitutionally required because the Commonwealth knowingly
used Leiva's false testimony to secure the defendant's
conviction, or allowed for Leiva's false testimony to go
uncorrected, thereby violating the defendant's due process
rights. As the defendant did not raise this issue at trial,5 we
review for a substantial likelihood of a miscarriage of justice.
See Commonwealth v. Ware, 482 Mass. 717, 721–722 (2019). We
conclude that there was no error.
It is true that "[t]he Commonwealth may not present
testimony at trial which [it] knows or should know is false"
(quotation omitted). Ware, 482 Mass. at 721, quoting
Commonwealth v. Forte, 469 Mass. 469, 490 (2014). "Nor may the
Commonwealth, 'although not soliciting false evidence, allow[]
it to go uncorrected when it appears.'" Ware, supra, quoting
Commonwealth v. Hurst, 364 Mass. 604, 608 (1974). A conviction
obtained in either scenario "must fall under the Fourteenth
Amendment" to the United States Constitution. Napue v.
Illinois, 360 U.S. 264, 269 (1959). Here, it is clear that the
"we are not obligated to consider it here." Halstrom v. Dube, 481 Mass. 480, 483 n.8 (2019).
5 Although the defendant's motion for relief from prejudicial joinder does not appear in the record, there is no indication that defense counsel ever argued, in writing or orally, that the motion should be granted because of Leiva's false testimony. 11
Commonwealth did not affirmatively present false testimony,
given that Leiva was not the Commonwealth's witness, so the
question is whether the Commonwealth allowed Leiva's testimony
to go uncorrected when it knew or should have known that his
testimony was false.
In order to correct testimony that is known to be false, a
prosecutor must "take such remedial measures before the jury
retire[] as are necessary to ensure that [they are] not
deceived." Gomez v. Commissioner of Correction, 336 Conn. 168,
189 (2020). Although the precise remedial measures employed may
vary depending on the circumstances of a case, one such means of
correcting false testimony is, of course, cross-examination.
See Leiva, 484 Mass. at 784 n.19 ("Our system[] . . . hedges
against the risk that judgment will be rendered on false
premises by providing for rigorous cross-examination . . .").
See also Hoffa v. United States, 385 U.S. 293, 311 (1966) ("The
established safeguards of the Anglo-American legal system leave
the veracity of a witness to be tested by cross-examination, and
the credibility of his testimony to be determined by a properly
instructed jury").
Here, the prosecutor challenged the veracity of much of
Leiva's narrative testimony by conducting a vigorous and
thorough cross-examination. For example, the prosecutor showed
surveillance footage, depicting an individual running shortly 12
after the murder. Although Leiva disputed that he was this
individual, he conceded -- in response to the prosecutor's
questions -- that he is depicted in the footage at times before
and after the running individual can be seen. The implication
was clear: the prosecutor sought for the jury to infer,
contrary to Leiva's testimony, that the running individual was
in fact Leiva. Indeed, the prosecutor explicitly stated during
closing arguments that the jury "would have every right to draw
the inference" that this individual was Leiva.
With the prosecutor having rigorously cross-examined Leiva,
it was for the jury to determine whether he was telling the
truth. See Forte, 469 Mass. at 490. Indeed, there can be no
doubt that the jury were not deceived by Leiva; in order to
convict him, the jury needed to reject Leiva's version of
events.
Nonetheless, the defendant points out that the prosecutor
asked Leiva on cross-examination whether he was trying "to help
[his] friend Amadi out," and further asked Leiva why he decided
to testify. By doing so, the defendant argues, the prosecutor
was insinuating that Leiva was "Sosa's witness." As improper as
these questions may have been, the defendant's theory has a
fatal flaw: Leiva never answered, as the trial judge sustained
objections to these questions before Leiva could do so. The
jury had been previously instructed that, if an objection was 13
sustained, they were to disregard the question and not speculate
as to what the answer might have been. See Commonwealth v.
Andrade, 488 Mass. 522, 535 (2021) ("Jurors are presumed to
follow the instructions given"). Accordingly, because the
prosecutor did not knowingly use, or knowingly fail to correct,
false testimony from Leiva, the defendant's due process rights
were not violated.6
ii. Right to confrontation. The defendant next claims
that severance was required because he was deprived of a
constitutional right to cross-examine Leiva on a "critical issue
of bias": that Leiva was testifying falsely pursuant to rule
3.3 (e). We review for abuse of discretion and conclude that
the trial judge did not abuse his discretion by restricting
cross-examination of Leiva's invocation of rule 3.3 (e). See
Commonwealth v. Miles, 420 Mass. 67, 71-72 (1995).
"Both the Sixth Amendment [to the United States
Constitution] and art. 12 [of the Massachusetts Declaration of
Rights] guarantee a criminal defendant's right to confront the
6 We also reject the defendant's claim that the trial judge misled the jury by placing Leiva under oath, as if to suggest that Leiva's testimony was true. Swearing or affirming one's duty to testify truthfully is a prerequisite to testifying. See Commonwealth v. Stewart, 454 Mass. 527, 531 (2009). If placing a witness under oath could somehow be construed as an endorsement of the veracity of his or her testimony, it would be impossible for the jury to ever engage in their role of determining witness credibility. See Commonwealth v. Casey (No. 1), 442 Mass. 1, 8 (2004). 14
witnesses against him through cross-examination." Miles, 420
Mass. at 71. "In determining whether a defendant's
constitutional right to cross-examine and thus to confront a
witness against him has been denied because of an unreasonable
limitation of cross-examination, we weigh the materiality of the
witness's direct testimony and the degree of the restriction on
cross-examination." Id. at 72, citing Commonwealth v. Kirouac,
405 Mass. 557, 561 (1989).
While criminal defendants have a right to cross-examine
prosecution witnesses concerning their bias, a judge may
properly foreclose such examination where the theory of bias is
"too tenuous" or "too speculative." Commonwealth v. Bui, 419
Mass. 392, 401-402, cert. denied, 516 U.S. 861 (1995). Here,
the connection between the invocation of rule 3.3 (e) and any
conceivable bias on Leiva's part is simply too tenuous. The
defendant does not adequately explain how the invocation of rule
3.3 (e) would motivate Leiva to testify falsely. At best, he
seems to vaguely suggest that preventing cross-examination on
this topic would somehow incentivize Leiva to perjure himself
because the falsity of his testimony would be shielded from
disclosure. But the judge did not prevent counsel from
attacking the actual substance of Leiva's testimony; indeed, as
we explained supra, the prosecutor did so to great effect. 15
Moreover, we do not accept the notion that Leiva would have
been encouraged to perjure himself through the invocation of
rule 3.3 (e), particularly where the record demonstrates that
Leiva's attorney confirmed at sidebar that he had advised Leiva
in accordance with the rule. The advice required of counsel
under rule 3.3 (e) is designed to dissuade false testimony, not
encourage it. See Mass. R. Prof. C. 3.3 (e) ("In a criminal
case, defense counsel . . . has a duty strongly to discourage
the client from testifying falsely, advising that such a course
is unlawful, will have substantial adverse consequences, and
should not be followed"). Given the attenuation between rule
3.3 (e) and Leiva's motive for testifying, the judge did not
abuse his discretion.
iii. Prejudicial joinder. The defendant's final argument
concerning severance is that the judge abused his discretion in
denying the defendant's motion for relief from prejudicial
joinder. "Absent a constitutional requirement for severance,
joinder and severance are matters committed to the sound
discretion of the trial judge." Commonwealth v. McAfee, 430
Mass. 483, 485 (1999). Accordingly, we review the judge's
denial of the motion for relief from prejudicial joinder for
abuse of discretion. See Commonwealth v. Akara, 465 Mass. 245,
256 (2013). We conclude there was no error. 16
"A judge should sever trials if a defendant meets the
burden of proving 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'" (citations omitted).
Commonwealth v. Siny Van Tran, 460 Mass. 535, 542 (2011).
Regarding the first basis, "defenses are mutually antagonistic
and irreconcilable where the 'sole defense of each [is] the
guilt of the other.'" Id., quoting Commonwealth v. Stewart, 450
Mass. 25, 31 (2007). It is not enough to require severance
simply because the defendants "assert inconsistent trial
strategies," Siny Van Tran, supra, or because "a defendant would
stand a better chance of acquittal if tried alone."
Commonwealth v. DePina, 476 Mass. 614, 629 (2017).
Here, the defenses of Leiva and the defendant were not
mutually antagonistic. Indeed, we previously noted that the
defendant and Leiva "advanced entirely consistent trial
defenses." Leiva, 484 Mass. at 793 n.35. The defendant
asserted he was misidentified as one of the participants, and
Leiva similarly denied that he shot the victim. Under the facts
of this case, the jury were free to conclude both that the
defendant was misidentified and that Leiva did not shoot the
victim. See Commonwealth v. Watson, 487 Mass. 156, 168–169
(2021) (defenses not so mutually antagonistic requiring 17
severance where codefendants argued misidentification and lack
of involvement). Thus, "as the jury could have accepted either
codefendant's argument while at the same time acquitting the
other," the defenses presented were not mutually antagonistic.
Commonwealth v. Fan, 490 Mass. 433, 440 (2022).
Likewise, Leiva's testimony, which in no way implicated the
defendant, did not prevent the defendant from receiving a fair
trial. Rather than pointing the finger at the defendant, Leiva
testified that he had not seen the defendant on the day of the
murder, and he denied having referred to the defendant in
connection with the shooting. Among his scant testimony that
even related to the defendant, Leiva acknowledged that he had
initially asked a friend to pick him up at the defendant's
address on the night of the shooting, before changing his
request to a different address. But this same information had
already been introduced in evidence independently through the
friend's testimony, as well as through a printout of text
messages exchanged between Leiva and the friend. Thus, Leiva's
testimony on this point "was at best cumulative" of other
evidence in the record. Commonwealth v. Vasquez, 462 Mass. 827,
837 (2012). Accordingly, the judge did not abuse his discretion
in denying the defendant's motion.
c. Use of compilation video recording. A Springfield
police officer testified at trial that, shortly after the night 18
of the shooting, he extracted surveillance footage from a
digital video recorder that was provided by the property
management office at the apartment building where Leiva went on
the night of the shooting. The complete video footage contained
several camera angles of the property, spanning multiple hours
around the time of the shooting. From this longer, multiple-
hour video footage, a condensed video recording (compilation
video) was created, culled to what was relevant to the shooting.
The defendant argues that the trial judge erred in allowing the
prosecutor to use this compilation video because it was never
authenticated, marked for identification, or admitted in
evidence.7 In response, the Commonwealth emphasizes that the
complete footage, from which the compilation was derived, was
admitted in evidence.
As defendant's counsel objected to the use of the
compilation video, "we review to determine whether the judge
abused [his] discretion and, if so, whether the error resulted
in prejudice to the defendant" (quotation and citation omitted).
Commonwealth v. Davis, 487 Mass. 448, 465 (2021), S.C., 491
Mass. 1011 (2023). "An error is not prejudicial if it did not
influence the jury, or had but very slight effect" (quotation
7 The prosecutor used the compilation video at several points during his cross-examination of Leiva. The prosecutor also showed various clips from the compilation video to the jury during closing arguments. 19
and citation omitted). Commonwealth v. Irene, 462 Mass. 600,
618, cert. denied, 568 U.S. 968 (2012). We conclude that,
assuming error, the defendant was not prejudiced by the
prosecutor's use of the compilation video.
The defendant does not argue that the complete footage
itself was erroneously admitted, where testimony was offered to
authenticate that footage. In particular, an officer described
at trial how the complete surveillance footage was transported
and copied. Additionally, an employee from the property
management office testified as to how this footage was provided
to the police, and offered various details concerning the
cameras that recorded this footage.
Further, it is undisputed that the compilation video was a
subset of this longer surveillance footage that had already been
admitted in evidence. There is no indication that, for example,
the visuals contained within the compilation video were somehow
digitally altered to depict events that were different from
those depicted in the complete footage. We have reviewed the
compilation video and compared it to the corresponding times
from the original surveillance footage. Based upon our review,
we conclude that the sequencing of certain events from the
longer video footage into the compilation video "added little to
the Commonwealth's case and detracted little from the 20
defendant's theory at trial." Commonwealth v. Wood, 90 Mass.
App. Ct. 271, 282 (2016).
Therefore, under these circumstances, we are convinced that
the defendant suffered no prejudice. See Commonwealth v.
Kozubal, 488 Mass. 575, 588 (2021), cert. denied, 142 S. Ct.
2723 (2022) (even if admission of isolated text messages between
defendant and victim was error, defendant was not prejudiced,
"given the cumulative nature of the evidence, including the
admission of the many text messages between the defendant and
the victim that the defendant does not contest").
Finally, we note that while the defendant suffered no
prejudice here, the better practice is to authenticate excerpts
that have been copied from an exhibit, even when the complete
exhibit itself has already been authenticated and admitted in
evidence, to ensure that those excerpts are accurate copies.
See Commonwealth v. Leneski, 66 Mass. App. Ct. 291, 294 (2006)
("properly authenticated" copy of videotape is admissible if
otherwise relevant). Additionally, although the Commonwealth
did not do so here, parties should explore the viability of
admitting excerpts of voluminous video recordings pursuant to
Mass. G. Evid. § 1006 (2023), particularly where a jury may find
it "difficult to master the technology necessary to find and
view the relevant parts of the [complete] videos in the jury
room." Commonwealth v. Suarez, 95 Mass. App. Ct. 562, 571-572 21
(2019) (no abuse of discretion in admitting compilation of
surveillance videos pursuant to Mass. G. Evid. § 1006).
d. Deliberate premeditation. The defendant also contends
that the trial judge erred in denying his motion for a required
finding of not guilty on the charge of murder in the first
degree based upon the theory of deliberate premeditation. He
claims the evidence was insufficient for the jury to find that
he intended to kill the victim, reasoning that because Leiva's
intent to kill is not attributable to the defendant, the
evidence at best supported an inference that the defendant
intended to rob or intimidate the victim. Additionally, the
defendant maintains that the evidence was insufficient to
establish deliberate premeditation, reasoning that, since "the
abrupt shooting" was a "surprise" to him, the defendant's intent
was not "the product of cool reflection." See Commonwealth v.
Colas, 486 Mass. 831, 836 (2021), quoting Commonwealth v.
Tavares, 471 Mass. 430, 435 (2015). Although we acknowledge
that the issue is close, we conclude that the trial judge did
not err.
In reviewing the denial of such a motion, we ask whether
"the Commonwealth's evidence, together with reasonable
inferences therefrom, when viewed in its light most favorable to
the Commonwealth, is sufficient to persuade a rational jury of
the defendant's guilt beyond a reasonable doubt" (quotation and 22
citation omitted). Commonwealth v. Gibson, 488 Mass. 854, 857
(2022). "The relevant question is whether the evidence would
permit a jury to find guilt, not whether the evidence requires
such a finding." Commonwealth v. Brown, 401 Mass. 745, 747
(1988).
For the defendant to be convicted on a theory of deliberate
premeditation, the Commonwealth had to prove that he "had or
shared an intent to kill or cause death" (quotation and citation
omitted). Tavares, 471 Mass. at 435. Additionally, the
Commonwealth had to prove that the decision to kill "was the
product of cool reflection" (citation omitted). Colas, 486
Mass. at 836. "Circumstantial evidence alone may be sufficient
to prove deliberate premeditation." Commonwealth v. Salazar,
481 Mass. 105, 111 (2018). "No particular period of reflection
is required for deliberate premeditation to be found."
Commonwealth v. Chipman, 418 Mass. 262, 269 (1994). "Thus, if
there was evidence presented from which the jury could infer
that the defendant intended to kill [the victim], and the
decision was the result of some period of reflection, however
short, then the defendant's motion . . . was properly denied."
Tavares, supra.
Here, when viewed in the light most favorable to the
Commonwealth, there was sufficient evidence from which the jury
could infer that the defendant shared Leiva's intent to kill the 23
victim, and that this shared intent was the product of a period
of reflection. Although Leiva's intent is not imputed to the
defendant, "[t]he jury may infer the requisite mental state [for
a joint venturer] from [his] knowledge of the circumstances and
subsequent participation in the offense" (citation omitted).
Commonwealth v. Freeman, 442 Mass. 779, 782–783 (2004), S.C.,
451 Mass. 1006 (2008). Thus, the defendant's intent can be
"inferred from evidence that [the] defendant (a) observed
[Leiva] demonstrate or express lethal intent (e.g., by producing
a gun) and (b) thereafter took some step to help carry out that
intent." Commonwealth v. Gonzalez, 475 Mass. 396, 416–417
(2016).
As defense counsel conceded at oral argument before this
court, there was sufficient evidence that the defendant knew
that Leiva possessed a gun. Indeed, the defendant had ample
opportunity to observe the gun, given that the defendant was
standing next to Leiva, the encounter took several minutes, and
Leiva pointed the gun at the girlfriend before aiming it at the
victim. See Commonwealth v. Norris, 462 Mass. 131, 140 (2012).
Although the Commonwealth was not obligated to prove that the
defendant knew Leiva was armed, the defendant's knowledge is
probative as to his intent. See Commonwealth v. Rosa, 468 Mass.
231, 245 (2014) (proof of defendant's knowledge that coventurer
is armed is not required). 24
Additionally, there was sufficient evidence for the jury to
conclude that the defendant supplied both the gun and the
ammunition, including (1) the girlfriend's testimony that she
had previously seen the murder weapon at the defendant's
residence and that the defendant was friends with Leiva; (2) the
girlfriend's testimony that she witnessed Leiva disappear behind
the porch and re-emerge with the defendant while holding a gun;
and (3) expert testimony that the caliber and manufacturer
markings of the ammunition found in the defendant's basement
matched the caliber of the bullets recovered from the victim's
body and the markings on the casings found at the crime scene.
See Commonwealth v. Beliard, 443 Mass. 79, 81-82, 86 (2004).
See also Gonzalez, 475 Mass. at 416 ("knowledge and intent [may
be] inferred . . . when a defendant brings a gun to the scene of
the killing, but does not [himself] fire the fatal shot").
We also look to the defendant's conduct at the time of the
shooting to infer intent. See Freeman, 442 Mass. at 782–783.
First, the defendant complied with Leiva's instruction to "run"
the victim's pockets.8 Second, as Leiva shot the victim seven
8 To be sure, an intent to rob cannot be conflated with an intent to kill. See Commonwealth v. Mandile, 403 Mass. 93, 100 n.11 (1988). However, conduct that could support an inference that a defendant intended to rob a victim may, under the right circumstances, also support an inference that a defendant intended to kill a victim. See, e.g., Freeman, 442 Mass. at 783. Here, even if this conduct is more probative as to the defendant's intent to rob the victim, it nonetheless has some 25
times, the defendant stood by Leiva's side facing the victim.
While mere presence at a crime scene is not sufficient to
establish intent, when viewing the evidence in the light most
favorable to the Commonwealth, the jury did not have to infer
that the defendant's intent was merely to rob or intimidate the
victim as he suggests. See Gonzalez, 475 Mass. at 414. To the
contrary, the evidence at trial demonstrated that the three men
were positioned in such a way as to effectively block the victim
from the kitchen door and the porch stairs -- his only two means
of escape. In other words, the victim was "[t]rapped in his
chair" on the small porch, while the three men stood over him.
Leiva, 484 Mass. at 767. Thus, the jury could have reasonably
inferred that the defendant flanked Leiva, towering over the
victim with the intent of making the crime succeed. See
Commonwealth v. Bonner, 489 Mass. 268, 279 (2022) (defendant
standing next to shooter, who continued to aim gun at victim
after shooting, was probative as to defendant's shared intent to
kill victim); Watson, 487 Mass. at 163 (reasonable for jury to
infer defendant's role was to block street so others could not
interfere while coventurer shot victim). That is, a rational
jury could reasonably infer that the defendant helped block the
weight as to the defendant's intent to kill the victim, particularly given that the defendant knew that Leiva was armed. 26
victim from escaping to ensure that Leiva could accomplish his
goal: shooting and killing the victim.
While the inference that the defendant intended to block
the victim from escaping is not itself inescapable, "reasonable
inferences . . . need not be necessary or inescapable, only
reasonable and possible" (quotations and citation omitted).
Commonwealth v. Schoener, 491 Mass. 706, 714 (2023). Moreover,
"[t]he line that separates mere knowledge of unlawful conduct
and participation in it, is 'often vague and uncertain. It is
within the province of the jury to determine from the evidence
whether a particular defendant [has] crossed that line.'"
Norris, 462 Mass. at 140, quoting Commonwealth v. Longo, 402
Mass. 482, 487 (1988). Therefore, there was sufficient evidence
for a rational jury to conclude that the defendant intended to
kill the victim.
There was likewise sufficient evidence for a rational jury
to conclude that the defendant's intent was a product of
deliberate premeditation. Given the abrupt comings and goings
of Leiva over the course of the evening, and the defendant's
sudden appearance from behind the porch alongside Leiva, who was
at that point wielding a firearm, a jury could reasonably infer
that the defendant was "lying in wait" with the murder weapon
until the right time to provide the weapon to Leiva and join him
in a confrontation with the victim. Tavares, 471 Mass. at 435– 27
436. See Commonwealth v. Robinson, 482 Mass. 741, 746 (2019)
("Deliberate premeditation can be inferred from the bringing of
a firearm to the scene of the killing . . .").
Further, there is no evidence that the defendant was
"surprise[d]," as he claims; rather, the evidence was that he
freely stood by Leiva's side as the victim was shot seven times.
Accordingly, "[t]his case . . . does not suggest plain
spontaneity or tainted premeditation." Commonwealth v. Rivera,
482 Mass. 259, 272 (2019). In short, while any one fact in this
case would have been insufficient on its own, "the entirety of
the facts presented 'form[ed] a fabric of proof that was
sufficient to warrant the jury's finding beyond a reasonable
doubt that the defendant' was guilty of murder in the first
degree on a theory of deliberate premeditation as a joint
venturer." Commonwealth v. Javier, 481 Mass. 268, 285 (2019),
quoting Commonwealth v. Rojas, 388 Mass. 626, 630 (1983).
e. Felony-murder. The defendant also argues that there
was insufficient evidence to support his conviction of felony-
murder in the first degree with the attempted commission of
armed robbery as the predicate felony. Although not clearly
articulated in the defendant's briefing, the defendant's
argument appears to suggest that the trial judge was required to
instruct the jury that they had to find, as an essential
"factual" element of felony-murder, that the maximum sentence 28
for the predicate felony -- armed robbery -- is "punishable by a
maximum sentence of life imprisonment." Because the jury were
not so instructed and no "evidence" of this "fact" was
presented, the defendant contends, his conviction of felony-
murder "is invalid."
We disagree. The penalty for armed robbery, as with other
criminal offenses, is set by statute; thus, the maximum sentence
allowable for armed robbery is a matter of statutory
interpretation -- "a pure question of law." Commonwealth v.
Cintolo, 415 Mass. 358, 359 (1993). Accordingly, this question
is "for the judge, not the jury." Commonwealth v. Trotto, 487
Mass. 708, 735 (2021). Here, as the defendant concedes, the
trial judge correctly instructed the jury that armed robbery is,
as a matter of law, a felony with a maximum sentence of life
imprisonment. See G. L. c. 265, § 17. Accordingly, the
defendant's argument fails.
f. Unlawful possession of ammunition. In his brief, the
defendant argues, with respect to his conviction of unlawful
possession of ammunition under G. L. c. 269, § 10 (h), that
there was insufficient evidence that he knew that Leiva's
firearm was loaded.9 Subsequently, in light of the United States
9 The Commonwealth proceeded on a theory that the defendant constructively possessed the ammunition found at the crime scene; he was not charged in connection with the ammunition seized from his residence. 29
Supreme Court's holding in New York State Rifle & Pistol Ass'n
v. Bruen, 142 S. Ct. 2111, 2122 (2022), that the Second
Amendment to the United States Constitution protects an
individual's right to carry a firearm outside the home, this
court concluded that "licensure is . . . an essential element of
the crime of unlawful possession of ammunition under G. L.
c. 269, § 10 (h)." Commonwealth v. Guardado, 491 Mass. 666, 692
(2023) (Guardado I), vacated in part, 493 Mass. 1, 12 (2023)
(Guardado II). The defendant thereafter filed a supplemental
brief in which he argues that our holding in Guardado I
necessitates that his unlawful possession conviction be vacated
and remanded for entry of a judgment of acquittal.
We agree that the defendant's conviction must be vacated.
It is a violation of a defendant's Second Amendment and due
process rights "when he [i]s convicted of unlawfully possessing
ammunition although the jury were not instructed that licensure
is an essential element of the crime." Guardado I, 491 Mass. at
693. "[T]he Commonwealth carries the burden of proving each
element of a charged crime." Id. at 682. Here, the jury were
not instructed that the Commonwealth had the burden of proving
the defendant's lack of licensure as an element of the crime.
Thus, the defendant's unlawful possession conviction must be
vacated. 30
However, we disagree with the defendant's proposal to
remand for entry of a judgment of acquittal. The proper remedy
under these circumstances is to remand for a new trial. See
Guardado II, 493 Mass. at 6-7, 12. Accordingly, the
Commonwealth shall have an opportunity to prove that the
defendant unlawfully possessed ammunition. Id. at 2-3, 12.
g. Manslaughter instruction. The defendant next argues
that the judge erred in denying his request for an involuntary
manslaughter instruction. The defendant reasons that the jury
could have found that the defendant acted "wanton[ly]" or
"reckless[ly]" in accompanying Leiva to merely frighten or
intimidate the victim, rather than to kill or rob him. As the
defendant requested an involuntary manslaughter instruction at
trial, we review for prejudicial error. See Commonwealth v.
Pina, 481 Mass. 413, 422 (2019). We conclude that, even
assuming that the judge erred, there was no prejudice.
Ordinarily, in the case of felony-murder, "the defendant is
not entitled to an instruction on manslaughter" (citation
omitted). Commonwealth v. Carter, 475 Mass. 512, 523 (2016).
Nonetheless, "[a]n instruction on involuntary manslaughter is
appropriate in a felony-murder case . . . if there is evidence
that the defendant was merely engaged in wanton [or] reckless
conduct . . . ." Commonwealth v. Donovan, 422 Mass. 349, 353
(1996). Here, while the jury were not instructed on involuntary 31
manslaughter, the trial judge did instruct the jury on murder in
the second degree, based on theories of both malice and felony-
murder. Because the jury found the defendant guilty of murder
in the first degree based on both theories, the judge's
instruction on murder in the second degree precludes any
conclusion of prejudice. See Commonwealth v. Chase, 433 Mass.
293, 300 (2001) ("This is not a case where the failure to
instruct on a lesser included offense left the jury with no
alternative between a murder conviction and an acquittal"). See
also Donovan, supra at 354 ("If the jury believed that the
defendant shared some lesser intent than that required for [the
underlying felony for felony-murder in the first degree], they
had the option of returning a verdict of murder in the second
degree. They did not").
h. Motion for a new trial. i. Ineffective assistance of
counsel. In his motion for a new trial, the defendant asserted
that his trial counsel was ineffective because he failed to
timely file a motion to suppress the ballistics evidence seized
from the basement of the apartment building where the defendant
resided. The defendant maintained that the search warrant
affidavit of Springfield police Detective Timothy Kenney failed
to establish probable cause to search the basement for firearms,
ammunition, and related evidence. In denying the defendant's 32
motion for a new trial, the motion judge concluded that there
was probable cause to search the basement common area.
On appeal, the defendant reiterates his argument that there
was no probable cause to search the basement for ammunition or
firearms, and therefore, the motion judge erred in concluding
otherwise. The Commonwealth counters that the defendant lacked
a reasonable expectation of privacy in the basement, and
therefore no search occurred in the constitutional sense. The
defendant asserts that the Commonwealth's argument must be
disregarded because the record is incomplete as to whether the
basement is a common area. The defendant's argument misses the
mark.
Where, as here, a defendant's motion for a new trial based
on ineffective assistance of counsel has been denied and we are
reviewing it alongside his direct appeal pursuant to G. L.
c. 278, § 33E, our task is to determine whether counsel erred
and, if he did, whether that error "was likely to have
influenced the jury's conclusion" (citation omitted).
Commonwealth v. Montez, 450 Mass. 736, 754 (2008). More
specifically, "the defendant must show that the motion to
suppress would have been successful, and that failing to bring
such a motion . . . created a substantial likelihood of a
miscarriage of justice." Commonwealth v. Banville, 457 Mass.
530, 534 (2010). 33
Here, the evidence presented in connection with the
defendant's motion for a new trial implicates, at minimum, a
likelihood that the basement is a common area.10 The basement
was part of a three-family residence. In general, occupants of
a multiunit residence lack a reasonable expectation of privacy
in its common areas. See, e.g., Commonwealth v. Montanez, 410
Mass. 290, 302 (1991). That said, the question whether such an
occupant has a reasonable expectation of privacy in a
purportedly common area "cannot be answered categorically."
Commonwealth v. Dora, 57 Mass. App. Ct. 141, 144–145 (2003). If
that question were to be answered in the negative, then "the
police [were] free to search [the basement] without a warrant
and without probable cause." Commonwealth v. Porter P., 456
Mass. 254, 259 (2010).
However, we need not answer that question. It is true that
some details regarding the basement are unclear.11 But this is
10For example, at an evidentiary hearing on the defendant's motion for a new trial, Detective Kenney testified that the basement could be accessed through a staircase that connects to each apartment. Additionally, there were no clearly marked areas in the basement that could be used to attribute ownership to particular individuals. However, Detective Kenney could not recall whether the basement had a door or whether he forced entry to gain access to the basement.
11For example, it is unclear whether, assuming that the basement had a door, it was locked at the time of the search. It is likewise unclear who actually used the basement and whether any residents were excluded from using the basement. We express no opinion as to the precise facts that would have been 34
precisely why a motion to suppress would have failed -- because
it is the defendant's burden to demonstrate that he had a
reasonable expectation of privacy in the basement and its
contents at the time of the search, rather than the
Commonwealth's burden to show that he had no reasonable
expectation of privacy. See Commonwealth v. Netto, 438 Mass.
686, 697 (2003). Therefore, "if the record is unclear," the
defendant has failed to meet his burden. Id. In this context,
the defendant's burden on his motion for a new trial is the same
as the burden he would have had if his trial counsel had filed a
motion to suppress; that is, in order to meet his burden of
demonstrating that a motion to suppress would have been
successful for purposes of his motion for a new trial, the
defendant was obligated to present sufficient evidence that
demonstrated he had a reasonable expectation of privacy in the
basement. See Commonwealth v. Druce, 453 Mass. 686, 703 (2009)
("A defendant who seeks a new trial based on ineffective
assistance of counsel bears the burden of proving the
ineffectiveness").
Here, nothing that the defendant submitted in support of
his motion for a new trial resolves whether he had a reasonable
expectation of privacy in the basement. Without even, for
required for the defendant to demonstrate a reasonable expectation of privacy in this case. 35
example, a signed affidavit from the defendant providing
additional details concerning the basement, the defendant did
not satisfy his threshold burden of demonstrating that a search
in the constitutional sense had occurred at all. See
Commonwealth v. D'Onofrio, 396 Mass. 711, 714 (1986).
While the motion judge did not address whether the
defendant had a reasonable expectation of privacy, "[a]n
appellate court is free to affirm a ruling on grounds different
from those relied on by the motion judge if the correct or
preferred basis for affirmance is supported by the record and
the findings." Commonwealth v. Va Meng Joe, 425 Mass. 99, 102
(1997). The record clearly supports the conclusion that the
defendant did not meet his threshold burden of demonstrating
that he had a reasonable expectation of privacy in the basement.
Accordingly, the motion judge did not err in denying the
defendant's motion for a new trial.
ii. Evidentiary hearing. The defendant also argues, with
respect to his motion for a new trial, that the motion judge
erred in failing to hold an evidentiary hearing. However, the
motion judge did hold an evidentiary hearing. After this
evidentiary hearing, the defendant did not request another
hearing in his motion for reconsideration. Thus, the motion
judge concluded that another hearing was unnecessary and adopted
the defendant's version of the facts. 36
Where the trial court had already conducted an evidentiary
hearing, and where the defendant made no request for another, it
would have been "fair to conclude that the defendant was
proceeding on the facts from the existing . . . record."
Commonwealth v. Pimental, 54 Mass. App. Ct. 325, 333 (2002). In
any event, the motion judge properly exercised his discretion in
determining that another hearing was unwarranted, as he could
have reasonably concluded that the briefing and documents before
him "were sufficient to allow him to reach an informed
decision." Commonwealth v. Barry, 481 Mass. 388, 401 (2019).
i. 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.12
3. Conclusion. For the reasons stated, the defendant's
convictions of murder in the first degree and armed assault with
intent to rob are affirmed. The trial court's orders denying
the defendant's motion for a new trial and the defendant's
motion for reconsideration of the same are likewise affirmed.
12To the extent we do not discuss other arguments made by the defendant (including arguments on duplicative convictions, an alleged error in the jury instruction on felony-murder in the second degree, alleged ambiguities between the attempted commission of armed robbery and the commission of armed assault with intent to rob, the alleged irrelevance of certain photographic evidence, and omissions from Detective Kenney's search warrant affidavit), they "have not been overlooked. We find nothing in them that requires discussion." See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954). 37
We vacate and set aside the conviction of unlawful possession of
ammunition and remand to the Superior Court for a new trial on
the unlawful possession indictment.
So ordered.