Commonwealth v. Tyrone Strong

• Court: Massachusetts Supreme Judicial Court
• Decided: December 19, 2024
• Docket: SJC-13464
• Status: Published

Opinion

SUPREME JUDICIAL COURT

COMMONWEALTH vs. TYRONE STRONG

Docket:	SJC-13464
Dates:	October 9, 2024 - December 19, 2024
Present:	Budd, C.J., Gaziano, Wendlandt, Georges, & Wolohojian, JJ.
County:	Worcester
Keywords:	Homicide. Felony-Murder Rule. Robbery. Practice, Criminal, Assistance of counsel, Verdict, Instructions to jury, New trial, Capital case. Constitutional Law, Assistance of counsel. Evidence, Identity, Inference, Joint enterprise. Joint Enterprise. Identification.

      Indictment found and returned in the Superior Court Department on December 22, 2015.

      The case was tried before Richard T. Tucker, J.; and a motion for a new trial, filed on December 20, 2021, was heard by Valerie A. Yarashus, J.

      Donald A. Harwood for the defendant.

      Anne S. Kennedy, Assistant District Attorney, for the Commonwealth.

      WENDLANDT, J.  The defendant, Tyrone Strong, and his three coventurers planned to rob a known drug dealer, Christian Perez (victim), at gunpoint.  During the armed robbery, which occurred in Fitchburg, the victim was fatally shot.  Two of the defendant's coventurers were found not guilty -- each in separate trials -‑ and a third coventurer successfully moved to dismiss his indictment under Commonwealth v. McCarthy, 385 Mass. 160 (1982).  The defendant's fate was not similar; although the evidence against him was largely circumstantial, following a separate trial, a jury found the defendant guilty of murder in the first degree, based on a theory of joint venture in a felony-murder, with a predicate felony of armed robbery.  G. L. c. 265, § 1.

      Following his conviction, the defendant brought a motion for a new trial, contending that he received ineffective assistance of counsel, that the "rule of consistency" requires reversal of his conviction in view of the acquittals of two coventurers and the dismissal of one coventurer's indictment, and that reference in the jury instructions to the coventurer whose indictment was dismissed was improper.  The motion judge, who was not the trial judge, denied the motion.

      In this consolidated appeal, the defendant challenges the sufficiency of the evidence identifying him as one of the perpetrators of the armed robbery and murder.  He further contends that the motion judge abused her discretion in denying his motion for a new trial.  He also asks us to exercise our authority under G. L. c. 278, § 33E, to vacate his conviction or to reduce the verdict to a lesser degree of guilt.

      Having carefully examined the record and considered the defendant's arguments, we conclude that the evidence was sufficient to support the conviction, and there was no error that would warrant a new trial.  Nor do we discern any reason to exercise our extraordinary authority under G. L. c. 278, § 33E, to vacate the conviction, or to reduce the verdict of murder in the first degree to a lesser degree of guilt.  Accordingly, we affirm the conviction as well as the denial of his motion for a new trial.

      1.  Background.  Because the defendant challenges the sufficiency of the evidence, we recite the facts from the evidence presented at trial in the light most favorable to the Commonwealth.  See Commonwealth v. Silva, 431 Mass. 401, 403 (2000).

      a.  Shooting.  On September 2, 2003, at approximately 8:37 P.M., a Fitchburg resident heard multiple gunshots.  Looking out his second-floor window toward the sidewalk below, he saw two dark-skinned men wearing bandannas or durags on their heads and speaking to the driver of what he believed to be a maroon or burgundy vehicle.  Afraid of being seen peering down at the unfolding scene, the resident stepped away from the window.  Regaining his composure, he returned to his window; from this vantage point, he saw the two men wearing durags walk toward Route 2 and the brake lights of the vehicle as it traveled in the opposite direction.  The resident, a self-described "car enthusiast," observed that the vehicle was a late-model Cadillac with vertical taillights and a light-colored vinyl roof.

      At 8:38 P.M., an officer on patrol received a call to respond to the scene of the shooting.  Arriving within minutes, he saw a man standing on the side of the road with a gunshot wound to his shoulder.[1]  Further down the road, the officer saw an Acura sedan that had crashed into a parked vehicle.  When he approached the Acura, the officer saw the victim, who had suffered a gunshot wound to his head; United States currency was visible in the Acura's backseat.  Although the victim was a known drug dealer who had traveled to Fitchburg that evening to sell illegal drugs, the officer found no weapons or drugs in the Acura.  The officer requested emergency medical services and air medical transport.  In addition to the gunshot wound to his head, the victim had been shot in the lower left back and the left thigh; he did not survive his injuries.

      b.  Defendant's arrest.  Shortly after the shooting, at approximately 9 P.M., a State police trooper received a "be on the lookout" (BOLO) notification for a late-model red Cadillac with a tan touring roof and two Black men wearing durags on their heads.  The trooper and his colleague stationed their cruiser approximately fifteen miles east of Fitchburg on Route 2 eastbound; there, they monitored traffic.  After approximately one-half hour, a late-model green Cadillac with a tan roof caught the trooper's attention. 

      Knowing that a tan touring roof was "very unusual" and believing that the vehicle's long taillights when braking at night might cause a witness to mistake the color of the car, the trooper and his colleague decided to follow the Cadillac.  When the colleague pulled the cruiser alongside the Cadillac, the trooper illuminated the interior of the vehicle and observed four dark-skinned men, two of whom were wearing durags.

      In view of the substantial similarities with the BOLO notification, the trooper and his colleague suspected that the Cadillac and its occupants had been involved in the Fitchburg shooting.  They decided to conduct a "felony stop";[2] the area was rural, unlit, and surrounded by trees.  While his colleague used the cruiser's sound system to issue instructions for the Cadillac's occupants to roll down the windows and place the keys on the roof of the vehicle, the trooper noticed that the two rear seat passengers, including the defendant, were kneeling on the seat, looking out of the window, and ducking down.  This behavior continued for three to four minutes before the driver finally rolled down his window in compliance with the colleague's instructions, and the occupants got out of the car one at a time. 

      The driver, who was wearing a durag, was Tony Ancrum.  The front seat passenger was Giovanni Rivera.  The defendant occupied the rear seat on the driver's side of the vehicle.  The fourth passenger, who was in the rear passenger's side of the vehicle and was also wearing a durag, was Mitchell Rivera, Giovanni's brother.[3]

      The trooper searched Ancrum and found a large folding knife and a swath of a ripped white towel.  After placing the four men in handcuffs, the trooper returned to the Cadillac to conduct a preliminary search for weapons.  He noticed that the passenger's side of the back seat -- where Mitchell had been sitting -- was askew, as if someone had been pulling on it, and the corner of the seat was loose.  When other troopers arrived to assist, a more thorough search of the vehicle revealed two loaded firearms and over fifty grams of cocaine -- roughly the size of a fist -- under the back seat.  A third loaded firearm eventually was located under the hood of the Cadillac.  It was wrapped in a towel fragment matching the towel swath found on Ancrum. 

      The three firearms were sent to a laboratory for testing, but none was determined to be the murder weapon.  At trial, the prosecution's theory was that each of the four men had been armed and that the murder weapon had been discarded by the time the Cadillac was stopped.

      Also on the back seat was a "Burger King" bag, which contained hamburgers that were warm to the touch.  Officers later learned that at 8:53 P.M., approximately fifteen minutes after the shooting, Giovanni's cellular telephone had received a call from the landline telephone of a Burger King quick service restaurant located near Route 2 on the Fitchburg-Leominster line, which was not far from the scene of the shooting.

      Several items belonging to the victim eventually were also recovered from the Cadillac.   The items included two compact discs (CDs) inscribed with the names "Nancy" and "Edgar"; these CDs had previously belonged to the victim's friends and had been in the victim's Acura just prior to the shooting.  In addition, a CD case, which also had been in the victim's Acura and which contained CDs marked "Ysabel," the name of the mother of two of the victim's children, was also found in the Cadillac.  Also recovered from the Cadillac and missing from the victim's Acura were two "JVC" remote controls for the victim's car stereo, a battery charging port for a video camera, a cellular telephone charger, and a wiring harness with frayed wires that fit into the wiring harness from the dashboard of the victim's Acura.  Finally, the victim's silver and black "Movado"-brand watch was found on Mitchell.

      The four men were taken into custody; after being read the Miranda warnings, the defendant agreed to be interviewed.  The defendant asserted that he had never been to Fitchburg.  He claimed that he and his friends arranged to meet women in Shirley that evening, and that they had left the Roxbury section of Boston at 6 or 7 P.M.  He also stated that they had stopped at a convenience store or gasoline station in Shirley. 

      The men were tested for the presence of gunshot residue, but no test results came back positive.  The lead investigator testified that gunshot residue is a fine powder that can be wiped, washed, or rubbed off, and that the reliability threshold for gunshot residue testing is four hours, which the investigator testified had already passed by the time the defendant was tested.[4]

      c.  Ballistics and footwear prints.  Meanwhile, at the scene of the shooting, officers recovered seven shell casings on the side of the road, all of which were determined to have been fired by the same nine millimeter firearm.  As noted supra, the murder weapon was not recovered.

      The prosecution's footwear expert found eleven footwear prints in sand on the sidewalk near the recovered shell casings.  The expert compared the footwear impressions at the scene to the footwear worn by the four men in custody.  He opined that the shoes worn by Ancrum, size 9.[5] "Nike Air Force Ones," the shoes worn by Giovanni, size 10.5 "Nike Air Huaraches," and the shoes worn by the defendant, size eleven "Adidas Samoas," could have made several of the impressions found at the scene.5  The expert acknowledged that the footwear impressions lacked individual characteristics further linking the impressions to the exact shoes worn by the defendant, Ancrum, and Giovanni beyond the size and manufacturing design.[6]  When photographing the defendant's shoe for comparison to the impressions, the expert noticed that the bottom was caked in sand.  In his closing argument, trial counsel highlighted the lack of precision in the footwear impression evidence to challenge the prosecution's evidence of identification. 

      d.  Call logs and cell site location information.  Based on telephone call histories from the cellular telephones used by the coventurers and by several other individuals, officers developed a timeline for the day of the shooting.[7]  They discovered several calls between Giovanni and Josue Martinez.  Martinez, who was acquainted with Giovanni from his teenage years in Boston, knew that the victim was reputed to be a drug dealer.[8]

      Martinez testified that, on the day of the shooting, Giovanni, Ancrum, Mitchell, and the defendant[9] arrived at his Fitchburg home at around 6 P.M. and stayed for approximately two hours.  While at Martinez's home, Mitchell placed several calls to the victim.  Mitchell placed the final call to the victim at 7:58 P.M., approximately forty minutes prior to the shooting.[10]  At trial, the prosecution theorized that during these calls, the coventurers arranged to meet with the victim, ostensibly to buy drugs from him, but that the coventurers actually planned to rob him of his drugs and money.  Consistent with this theory, the victim had traveled from Worcester to Fitchburg with a plan to sell drugs.

      From 7:54 P.M. until 8:36 P.M., the telephone records show numerous calls between Giovanni and Mitchell.[11]  Calls between the coventurers resumed at 8:40 P.M., minutes after the shooting, with a series of unanswered calls from Ancrum and Giovanni to Mitchell.  Thereafter, Giovanni received a call from the landline telephone of a Burger King quick service restaurant near the crime scene at 8:53 P.M.  Cell site location information (CSLI) indicated that several of the cellular telephone calls, which were placed in the minutes before and immediately following the shooting, were routed through a cell tower located directly across the street from where the victim was shot.

      2.  Procedural history.  Following a jury trial, the defendant was convicted of murder in the first degree based on a theory of joint venture in a felony-murder, with a predicate felony of armed robbery.[12]  See G. L. c. 265, § 1.[13]  The defendant timely filed a notice of appeal.  Thereafter, the defendant filed a motion for a new trial.  In a thorough, well-reasoned opinion, the motion judge, who was not the trial judge, denied the motion.  We consolidated the defendant's timely appeal from the denial of his motion for a new trial with his direct appeal.

      3.  Discussion.  The defendant challenges the sufficiency of the evidence identifying him as a joint venturer.  He also contends that the motion judge abused her discretion in denying the defendant's motion for a new trial because the defendant was provided with ineffective assistance of counsel, because the defendant's conviction violates the "rule of consistency" in light of the acquittals of Ancrum and Giovanni in separate trials and the dismissal of Mitchell's indictment under McCarthy, 385 Mass. 160, and because the trial judge improperly included reference to Mitchell in his instructions to the jury despite the dismissal of Mitchell's indictment.  We address each argument in turn.

      a.  Sufficiency of the evidence of identity.  We assess the sufficiency of the evidence based on "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (citation omitted).  Commonwealth v. Kapaia, 490 Mass. 787, 791 (2022).  "A conviction may rest exclusively on circumstantial evidence, and, in evaluating that evidence, we draw all reasonable inferences in favor of the Commonwealth."  Commonwealth v. Javier, 481 Mass. 268, 279 (2019), quoting Commonwealth v. Jones, 477 Mass. 307, 316 (2017).  "[T]he inferences a jury may draw need only be reasonable and possible and need not be necessary or inescapable" (citation omitted).  Kapaia, supra.

      Here, the defendant argues that the evidence did not warrant a finding beyond a reasonable doubt that he was one of a group of perpetrators who killed the victim in the course of an armed robbery.  He contends that the footwear impression evidence was the only evidence tying him to the scene of the shooting.  And, relying on Commonwealth v. Morris, 422 Mass. 254, 257 (1996), a case concerning fingerprint evidence, he further maintains that the footwear impression evidence was insufficient in the absence of proof as to when the impressions were left.  See Morris, supra (reversing conviction where only identification evidence was defendant's thumbprint on mask found at crime scene absent evidence that print was made during crime's commission).  See also Commonwealth v. Anitus, 93 Mass. App. Ct. 104, 108 (2018) (applying Morris in context of deoxyribonucleic acid [DNA] evidence and concluding that such evidence, without more, was insufficient to identify defendant as one of two perpetrators, absent proof as to when DNA was deposited on moveable items found at crime scene). 

      The defendant's argument falters on its premise.  As detailed supra, the footwear impression evidence was not the only evidence tying the defendant to the armed robbery and the shooting.  Briefly, the defendant was in Martinez's Fitchburg home, alongside his coventurers, in the several hours before the victim was shot.  During that time, telephone records showed that the coventurers placed multiple calls to the victim, whom Martinez knew to be a drug dealer.  The last call to the victim was placed just forty minutes before the shooting.  For his part, the victim had left Worcester and planned to sell drugs in Fitchburg that evening.  This evidence permitted the jury to infer reasonably that the defendant and his coventurers concocted a ruse to lure the victim to the crime scene; specifically, they arranged a meeting with the victim ostensibly to purchase drugs in order instead to rob the victim, whom they knew to be a drug dealer and thus likely to be carrying, at the least, valuable illegal drugs.

      The defendant and his coventurers together left Martinez's home shortly after the last call to the victim.  They were traveling in a late-model green Cadillac with a tan touring roof.  The CSLI evidence showed that the defendant's coventurers were near the scene at the time of the shooting. 

      In this context, the evidence that footwear impressions, which matched the defendant's and two of his coventurers' footwear, were left in the sand near the scene of the shooting together with the evidence that the defendant's shoe when he was arrested shortly after the murder was caked in sand, supports the inference that the defendant was with his coventurers at the scene.  To be sure, the testimony regarding the footwear impressions was inconclusive insofar as many individuals have the same type, model, and size shoes as those worn by the defendant; nonetheless, the additional information that footwear impressions matching the types, models, and sizes of two of his coventurers also were at the scene suggested that the defendant, who had left Martinez's home with the coventurers in the Cadillac at approximately 8 P.M., and at least two coventurers were together at the scene of the shooting.  From this evidence, including the CSLI evidence regarding the presence of the coventurers at the scene at the time of the shooting, a jury could infer reasonably that the defendant was with his coventurers at the scene of the crime during the armed robbery and shooting. 

      Confirming this inference, a late-model Cadillac with a tan touring roof was spotted at the scene of the shooting immediately following the shooting.  Martinez testified that the defendant and his coventurers arrived in Fitchburg in that vehicle; that same vehicle was stopped headed back to Boston with the defendant and his coventurers inside.  Ancrum and Mitchell matched the general description -- dark-skinned men wearing durags -- given by the Fitchburg resident of the men he saw at the scene.  The warm hamburgers in the Burger King bag suggested that they recently had been at the quick service restaurant near the crime scene; Giovanni had received a call from the restaurant in the moments following the fatal shooting.

      Inside the Cadillac in which the defendant and his coventurers traveled were items taken from the victim, including personalized items –- the two CDs bearing the victim's friends' names "Nancy" and "Edgar" and the CD case with CDs labeled "Ysabel," which was the name of the mother of two of the victim's children; these items had been in the victim's possession on the evening of the shooting.  Additionally, three loaded firearms were found hidden in the Cadillac, along with a large quantity of cocaine and the victim's stereo system.  From this evidence, the jury could have found that the defendant and his coventurers were each armed during the robbery of the victim, that they had disposed of the murder weapon, and that they had taken the victim's property from the victim at gunpoint.

      The jury also heard evidence suggesting consciousness of guilt, which alone cannot support the defendant's conviction but "is probative of the defendant's guilty state of mind."  See Commonwealth v. Shakespeare, 493 Mass. 67, 85 (2023), quoting Commonwealth v. Salemme, 395 Mass. 594, 601 (1985).  During his interview, the defendant told officers that he had been in Shirley to meet women, stopping only at a gasoline station or convenience store.  This alibi was belied by Martinez, who testified that the defendant and his coventurers were in Martinez's Fitchburg home for approximately two hours prior to the shooting.  During this time, as discussed supra, the coventurers made several calls to the victim, a known drug dealer. 

      In addition, after being stopped by State police, the defendant and his coventurers were slow to respond to police instructions.  Instead, for three to four minutes, the defendant and Mitchell kneeled on the back seat of the Cadillac, turned around, and ducked down.  The back seat where they had been engaging in these behaviors was askew when the troopers examined it and underneath it lay a large quantity of cocaine and two loaded firearms. 

      In sum, the prosecution introduced abundant evidence, albeit circumstantial, linking the defendant to the murder.  Accordingly, we need not reach the defendant's contention that, like fingerprint evidence, where footwear impression evidence is the only identification evidence the prosecution must introduce proof that the footwear impressions were placed at the crime scene during the commission of the crime.  See Commonwealth v. LaCorte, 373 Mass. 700, 703 (1977) (noting but declining to reach argument regarding required proof "that the fingerprints in fact were placed at the scene during the commission of the crime" where prosecutor "introduced abundant evidence" tying defendant to murder). 

      b.  Ineffective assistance of counsel.  We turn now to the defendant's claim that the motion judge abused her discretion in denying the defendant's motion for a new trial based on the defendant's contention that he received ineffective assistance of counsel.  We review the denial of a motion for a new trial "to determine whether there has been a significant error of law or other abuse of discretion."  Commonwealth v. O'Brien, 494 Mass. 288, 296 (2024), quoting Commonwealth v. Fernandes, 492 Mass. 469, 475 (2023).  Where, as here, the motion judge did not preside at trial and did not hold an evidentiary hearing, "we regard ourselves in as good a position as the motion judge to assess the trial record."  O'Brien, supra, quoting Commonwealth v. Kirkland, 491 Mass. 339, 346 (2023).

      "When reviewing a defendant's appeal from the denial of a motion for a new trial in conjunction with the direct appeal of a conviction of murder in the first degree, 'we do not evaluate [the] ineffective assistance claim under the traditional standard set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).'"  Commonwealth v. Gibson, 492 Mass. 559, 568 (2023), quoting Commonwealth v. Melendez, 490 Mass. 648, 656-657 (2022).  "Instead, we apply the more favorable standard of G. L. c. 278, § 33E, and review the defendant's claim for a substantial likelihood of a miscarriage of justice."  Gibson, supra.  This standard requires us to determine "'whether defense counsel committed an error in the course of trial,' and if there was error . . . 'whether it was likely to have influenced the jury's conclusion.'"  Id., quoting Commonwealth v. Ayala, 481 Mass. 46, 62 (2018).  "Where a defendant challenges tactical or strategic decisions by trial counsel, the court will find ineffective assistance 'only if such a decision was manifestly unreasonable when made.'"  Commonwealth v. Weaver, 474 Mass. 787, 808 (2016), aff'd, 582 U.S. 286 (2017), quoting Commonwealth v. Diaz, 448 Mass. 286, 288 (2007).

      The defendant argues that trial counsel was constitutionally ineffective because he failed to investigate the window of time during which the footwear impressions could have been left in the sand at the scene by not obtaining meteorological information or asking the defense expert to opine on the time frame.  Following his conviction, the defendant retained the same footprint expert, James Streeter, who had been retained by trial counsel, see note 6, supra, and also retained a meteorologist, Fred Campagna.  According to their affidavits, considering the weather conditions on the day of the shooting, the footwear impressions could have been left as early as 11:30 A.M.  The defendant argues that trial counsel's failure to investigate the timing of the impressions was not a strategic decision.  In support of this claim, the defendant relies on Streeter's affidavit in which Streeter averred that trial counsel never asked him to render an opinion as to when the impressions could have been made.  Although trial counsel passed away before the defendant's motion for a new trial, we have a glimpse into counsel's decision-making process.  In a motion for a required finding of not guilty at the close of the Commonwealth's case, trial counsel stated:

"The only evidence that places [the defendant] at [the crime scene] on [the day of the shooting] is the [footwear] impressions.  There is no evidence when those impressions were made.  Most importantly, [the prosecution's footwear expert] testified that those impressions could have been made by [the defendant] or by someone else with shoes of the manufacturer, style, and size."  (Emphasis added.)

Trial counsel thus considered the lack of evidence as to when the footwear impressions were made.  Yet, he did not raise the issue in his closing argument, suggesting that counsel made a strategic decision to focus the defense on the absence of any direct evidence tying the defendant to the crime scene.  

      The defendant has not shown that trial counsel's decision to focus on the argument that the defendant was simply not at the crime scene at all, as opposed to arguing also or alternatively that he may have been at the crime scene but earlier on the day of the shooting, was manifestly unreasonable.  See Commonwealth v. Rhodes, 482 Mass. 823, 828 (2019) (acknowledging that "[t]here is nothing wrong with a defense strategy that follows the advice . . . to 'put all your eggs in one basket'"); Commonwealth v. Kolenovic, 471 Mass. 664, 675-676 (2015), S.C., 478 Mass. 189 (2017) (holding that defense counsel's decision to not pursue defense that "would require riding 'two horses'" in favor of viable alternative was not constitutionally ineffective assistance); Commonwealth v. Glover, 459 Mass. 836, 842-844 (2011) (holding that it is not manifestly unreasonable for defense counsel to argue only one of two available theories).  See also Commonwealth v. Velez, 487 Mass. 533, 546 (2021), quoting Commonwealth v. Epps, 474 Mass. 743, 758 (2016) ("an evaluation of trial counsel's performance involves weighing the strength of an asserted defense 'relative to the availability and strength of other potential defenses'").

      Evidence that the footwear impressions could only have been left after 11:30 A.M. on the day of the shooting would have narrowed the time frame for when the prints were left and thus may not have helped the defendant.  Indeed, the defendant's own statement was that he had not left his home in Roxbury until 6 or 7 P.M., and Martinez testified that the defendant had been at his home until approximately 8 P.M.  In view of the defendant's statement and Martinez's testimony, it was not unreasonable for trial counsel to have determined that showing that the footwear impressions could have been left earlier in the day would not have been helpful.

      By contrast, the defense pursued by trial counsel -- that the defendant was not at the crime scene -- aligned with the defendant's statements to police that he had arranged to meet women in Shirley on the night that the shooting occurred, that he had not been to Fitchburg on that night, and that he had been to a convenience store or gasoline station in Shirley.  In light of these statements, trial counsel's decision to focus on the inconclusiveness of the footwear prints was a stronger defense than possibly contradicting the defendant with evidence that he -- or someone with the exact same shoe model and size -- was at the scene sometime after 11:30 A.M. on the day of the shooting.  See Velez, 487 Mass. at 546.  The defendant thus has not shown that trial counsel's strategy was "manifestly unreasonable" resulting in a "substantial likelihood of a miscarriage of justice."  See Gibson, 492 Mass. at 568; Weaver, 474 Mass. at 808.

      c.  Consistency of the verdicts.  The defendant next contends that his conviction under a theory of joint venture violates the "rule of consistency" where his coventurers were acquitted in separate jury trials or had the indictment for felony-murder dismissed.  This court has reversed inconsistent convictions in limited circumstances.  See Commonwealth v. Medeiros, 456 Mass. 52, 58 (2010).  The doctrine may apply where the following three elements are met:  (1) "a crime charged that by its nature requires a combination of individuals," e.g., conspiracy; (2) "a single trial of all the participants in that crime"; and (3) "an acquittal of all but one of the participants."[14]  Id. at 59.   

      We have previously determined that a conviction under a theory of joint venture does not satisfy the first element.  See Commonwealth v. Fluellen, 456 Mass. 517, 520-522 (2010) ("We have not applied the rule of consistency to inconsistent verdicts in joint venture trials [as we have to those in conspiracy trials], because the first element, a crime that requires a combination of individuals, is generally not satisfied").  Such a conviction may stand even though the coventurers are not charged with the same offense, the identity of the principal is unknown, or the principal is acquitted.  See Commonwealth v. Tague, 434 Mass. 510, 513 (2001), cert. denied, 534 U.S. 1146 (2002).  Unless the Legislature has made commission of a crime by joint enterprise an element of the crime, "we have not required reversal where defendants are tried together for their alleged involvement in a single crime [as joint venturers], and one is convicted and the other acquitted, or where they are tried separately and different verdicts are returned" (citations omitted).  Medeiros, 456 Mass. at 57.

      Moreover, there was not a single trial of all the participants; instead, Ancrum and Giovanni were acquitted in separate trials.  See Commonwealth v. Jones, 403 Mass. 279, 289-290 (1988) ("There is nothing inconsistent between one jury's finding that there was insufficient evidence to prove [one joint venturer's] guilt beyond a reasonable doubt, and another jury's finding, in a separate trial, that there was sufficient evidence to prove the defendant's guilt to that degree of certainty").

      d.  Jury instructions.  The defendant next asserts that the trial judge improperly instructed the jury on joint venture insofar as the judge instructed the jury to consider the conduct of Mitchell, whose indictment was dismissed pursuant to McCarthy, 385 Mass. 160.[15]  Jury instructions on joint venture are appropriate where the nature of the evidence suggests the possibility that more than one individual participated in the crime.  See Commonwealth v. Dyer, 389 Mass. 677, 683 (1983).  Here, the evidence supported a reasonable inference that the defendant, Ancrum, Giovanni, and Mitchell jointly planned to rob the victim at gunpoint, and that the victim was shot during the armed robbery.  Thus, the trial judge did not err.  See id.

      Moreover, although Mitchell's indictment was dismissed on the basis of the evidence presented to the grand jury,[16] it was proper to instruct the jury that they could consider whether Mitchell had been a coventurer with the others because the evidence presented at the defendant's trial reasonably suggested Mitchell's participation in the joint enterprise.  See, e.g., Commonwealth v. Mattos, 404 Mass. 672, 681 (1989) (jury instruction on joint venture was proper even where coventurer's indictment was nol prossed).

      This evidence included, inter alia, that Mitchell was with the defendant and the two other coventurers at Martinez's Fitchburg home in the hours before the shooting; that the cellular telephone that Mitchell had borrowed from a friend was used to call the victim, inferably to set up a meeting to purchase drugs as a ruse to rob the victim, a known drug dealer; that Mitchell matched the general description of one of the assailants provided by a witness; that Mitchell was traveling alongside the defendant and the two other coventurers in the late-model Cadillac with a tan touring roof before the shooting and shortly after the shooting; that two firearms and cocaine were found underneath the seat where Mitchell was sitting; that, like the defendant, Mitchell was engaged in movements suggesting he was hiding evidence despite law enforcement officers' commands during the felony stop; that Mitchell wore the victim's watch when he was arrested; that a Burger King bag with warm hamburgers, inferably from the quick service restaurant that had contacted Giovanni just moments after the shooting, was near Mitchell in the backseat of the Cadillac; and that other items taken from the victim were later found in the Cadillac in which Mitchell and the other coventurers were traveling.

      e.  Review under G. L. c. 278, § 33E.  Finally, having considered the defendant's arguments and after our own independent and thorough review of the record, we discern no reason to exercise our extraordinary power pursuant to G. L. c. 278, § 33E, to vacate his conviction or to reduce the verdict in the interest of justice. 

      4.  Conclusion.  The defendant's conviction of murder in the first degree and the denial of his motion for a new trial are affirmed.

So ordered.

footnotes

[1] This man was identified as Jiovanni Espiritu Santos; he survived his injuries.  Espiritu Santos did not speak English and was not interviewed by the officers who testified at trial.  His whereabouts at the time of trial were unknown, and the Commonwealth did not offer any testimony from him.

[2] A "felony stop," the trooper explained, is one where an officer believes, based on training and experience, that a crime constituting a felony has been committed and the stop presents a danger to the officer's life.

[3] Because Giovanni and Mitchell Rivera share a surname, we refer to them by their first names.

[4] At a bench conference, trial counsel referenced a report indicating that the gunshot residue test was conducted within the four-hour time frame.  And during a pretrial hearing regarding the defendant's motion to dismiss, trial counsel produced a gunshot residue report stating that the defendant was swabbed within four hours after the shooting occurred.  This report was not admitted in evidence at trial.

[5] The expert excluded the shoes worn by Mitchell from the footwear impressions at the scene, as well as shoes worn by the victim and the second shooting victim.  See note 1, supra.

[6] Trial counsel also retained a footwear print expert, who testified that while the footwear impressions lacked individual characteristics and were "non-conclusive," the class characteristics of size, shape, and design meant that the defendant's shoe "could have made" the impressions at the scene of the shooting.

[7] The defendant had left his cellular telephone in Roxbury on the evening of the shooting.  Mitchell had borrowed a cellular telephone belonging to a friend.

[8] Martinez later learned that there had been some dispute between his girlfriend and the victim, but he testified that he was not aware of the dispute prior to the shooting. 

[9] Martinez was acquainted with the defendant, whom he called "T."  Martinez also recognized the green Cadillac driven by Ancrum; he testified that on a previous occasion the group had gone to a club in the Cadillac. 

[10] During the visit on the day of the shooting, the group smoked marijuana, ate, and talked before Martinez retired to his girlfriend's bedroom.  He was in the bedroom when the coventurers left. 

[11] From 8:15 P.M. to 8:27 P.M., telephone records also show several calls placed from Martinez to Mitchell.

[12] Prior to the trial, the prosecution dismissed indictments charging the defendant with carrying a firearm without a license, G. L. c. 269, § 10 (a), and unlawful possession of ammunition, G. L. c. 269, § 10 (h) (1).

[13] The defendant's trial commenced prior to our decision in Commonwealth v. Brown, 477 Mass. 805 (2017), cert. denied, 586 U.S. 826 (2018), prospectively abolishing common-law felony-murder as an independent basis for murder in the first degree without proving malice.

[14] The doctrine also applies where a guilty verdict is "impossible at law," e.g., where a defendant is convicted of mutually exclusive charges such as larceny and receipt of the same stolen goods.  Medeiros, 456 Mass. at 58, citing Commonwealth v. Haskins, 128 Mass. 60, 61 (1880).  The defendant rightly does not contend that his conviction falls within this limited category.

[15] Contrary to the defendant's assertions, the trial judge did not instruct the jury on conspiracy and Mitchell's statements were not admitted in evidence.

[16] We express no opinion as to the correctness of the trial judge's allowance of Mitchell's McCarthy motion.