Commonwealth v. Wood

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SJC-10977

COMMONWEALTH vs. WILLIAM WOOD.

Suffolk. March 7, 2014. - August 7, 2014.

Present: Ireland, C.J., Cordy, Botsford, Gants, & Lenk, JJ.1

Homicide. Felony-Murder Rule. Robbery. Evidence, Third-party
culprit, Relevancy and materiality, Hearsay, Prior
misconduct, Joint venturer, Expert opinion, Testimony
before grand jury. Jury and Jurors. Constitutional Law,
Confrontation of witnesses. Witness, Expert. Perjury.
Grand Jury. Practice, Criminal, Capital case, Hearsay,
Jury and jurors, Confrontation of witnesses, Argument by
prosecutor, Grand jury proceedings, Conduct of prosecutor,
Verdict, Question by jury, Duplicative convictions. Joint
Enterprise.

Indictments found and returned in the Superior Court
Department on May 4, 2004.

The cases were tried before Patrick F. Brady, J.

Stephen Neyman for the defendant.
Cailin M. Campbell, Assistant District Attorney (Patrick
Haggan, Assistant District Attorney, with him) for the
Commonwealth.

1
Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
 2

CORDY, J. In the early morning hours of February 13, 2004,

Betsy Tripp was bound with telephone wire and murdered in her

home, a condominium on Monsignor Way in the Dorchester section

of Boston. Her throat was slit. The man who shared the

condominium with her, Morris Thompson, was shot in the face,

coming close to death, and losing an eye. The perpetrators fled

in a vehicle that Thompson had borrowed from a neighbor in the

condominium complex and for which Thompson had the keys. The

vehicle was abandoned in the parking lot of a Dorchester

elementary school and set ablaze shortly after 2 A.M. that same

morning.

Thompson survived his wounds and accused the defendant,

William Wood, and Wood's friend, Quincy Butler, of committing

the crimes in the course of a botched kidnapping and robbery

attempt. Both were charged with murder and related crimes,2 and

were tried together. There were four trials. Two ended in

mistrials when the jury were unable to unanimously agree on a

verdict. A third resulted in mistrial when the trial judge

became ill during trial. At the fourth trial, which is the

2
The defendant, William Wood, was charged with murder in
the first degree, armed carjacking, two counts of kidnapping,
armed home invasion, two counts of armed robbery, assault and
battery by means of a dangerous weapon (a handgun), larceny of a
motor vehicle, and malicious destruction of property over $250.
Quincy Butler was charged with the same offenses, in addition to
one count of possession of a firearm.
 3

subject of this appeal, the defendant was convicted of murder in

the first degree on theories of felony-murder and extreme

atrocity or cruelty.3 Butler was convicted of murder in the

second degree, and his appeal is pending in the Appeals Court.

As outlined further below, the principal witnesses for the

Commonwealth were Thompson and Butler's former roommate and girl

friend at the time of the murder, Laura DaSilva. DaSilva's

testimony included her observations regarding the kidnapping at

gunpoint of Thompson from her apartment by the defendant and

Butler shortly before the murder; her observations of the

defendant and Butler when they returned to her apartment at

approximately 3 A.M. on February 13 and disposed of their

clothing, including what appeared to be bloody gloves; and

admissions made to her by Butler later that same morning

regarding what he and the defendant had done at Tripp's

condominium.

Both the defendant and Butler testified at trial,

essentially denying their involvement in the crimes. In

addition to their testimony, the defense focused on the lack of

forensic evidence tying either of them to the crime scene, what

3
The defendant was also convicted of armed carjacking, two
counts of kidnapping, armed home invasion, two counts of armed
robbery, and larceny of a motor vehicle. The judge dismissed
his convictions on both counts of armed robbery as duplicative
of his conviction of felony-murder in the first degree. The
defendant was acquitted of assault and battery by means of a
dangerous weapon on Morris Thompson.
 4

they claimed was an inadequate police investigation, and,

relatedly, the possibility that Thompson or one of Thompson's

drug-related associates had committed the crimes. The outcome

of the case, to a large degree, turned on the jury's assessment

whether the Commonwealth's principal witnesses or the

codefendants were telling the truth.

On appeal, the defendant raises numerous claims of error.

For the reasons stated below, we find no reversible error, and

discern no basis to exercise our authority under G. L. c. 278,

§ 33E, to reduce or reverse the murder verdict. Consequently,

we affirm the defendant's convictions. We also reinstate the

defendant's two convictions of armed robbery, the underlying

felonies in the felony-murder conviction, which the judge

dismissed as duplicative. As we have concluded in similar

circumstances, those convictions are not duplicative where the

defendant is also convicted on another theory of murder in the

first degree, here murder with extreme atrocity or cruelty.

Commonwealth v. Gambora, 457 Mass. 715, 734 (2010) ("if a jury

return a special verdict specifying felony-murder as one of

several theories under which they convicted the defendant, the

underlying felony remains a distinct crime"). Commonwealth v.

Raymond, 424 Mass. 382, 396-397 (1997) (same).
 5

1. Background. We summarize the facts as the jury could

have found them, in the light most favorable to the

Commonwealth. Commonwealth v. Sanna, 424 Mass. 92, 93 (1997).

a. The murder. Thompson and Tripp began dating eight

years prior to her death in 2004, and moved into a condominium

in Dorchester together in 2001 or 2002. Thompson received

disability checks every month and also worked odd jobs, often as

a doorman at various Boston nightclubs or as a construction

worker.

In February, 2004, Thompson's neighbor, Mitra Ghobadi,

asked him to refurbish her apartment. He determined that he

needed help to finish the job on time. DaSilva had lived with

Thompson and Tripp for some time to escape an abusive former boy

friend, and Thompson decided to enlist the help of her new boy

friend, Butler. Thompson testified that he knew Butler as "Q."4

DaSilva testified that on the evening of February 12,

Thompson drove to her house in Boston with an "eight ball" of

"crack" cocaine. He smoked the crack cocaine with DaSilva,

Butler, and two other residents of the apartment in DaSilva's

bedroom.5,6 Thompson told Butler that he would pay him $200 at

4
Butler testified that he had met Morris Thompson numerous
times at Laura DaSilva's apartment.
5
Thompson repeatedly denied being a drug user and testified
that he did not smoke "crack" cocaine that night.
 6

the end of the following day for his assistance refurbishing

Ghobadi's apartment. Butler responded that he had a friend who

could help them get through the work more quickly. Thompson

agreed, and said that Butler and his friend could split the

$200.

At some point, the defendant entered the bedroom. Butler

told DaSilva to follow him to the bathroom to talk with him.

Once there, Butler said "that he was taking [Thompson] out and

[Thompson] wasn't coming back to the house."

Thompson became uneasy at the sight of the defendant, and

something "just didn't feel right." At that point, Butler said,

"We're gonna get paid tonight," pulled out a silver revolver

with a black handle,7 and put the gun to Thompson's head, while

the defendant went through Thompson's pockets. The defendant

took Thompson's automobile keys, money, and wallet, while

DaSilva sat and watched from the bed, silently.

After taking Thompson's money, Butler and the defendant

took Thompson to his automobile.8 The defendant drove while

6
The two other residents retired to their bedroom after
smoking and did not witness or take part in the armed robbery or
its aftermath.
7
Laura DaSilva testified that she had seen the defendant
give the gun to Butler months earlier.
8
On the night of the murder, Morris Thompson drove Mitra
Ghobadi's automobile, which she had lent to him after the
automobile he shared with Betsy Tripp was damaged. As the
 7

Thompson sat in the passenger seat and Butler sat behind him

holding the gun to Thompson's head. The group arrived at

Thompson's and Tripp's condominium building sometime after

midnight. After asking if the building had any security

cameras, the defendant and Butler walked Thompson to the front

door of the building and used his keys to open it. When they

then entered the condominium unit, Tripp was sleeping in the

bedroom.

The defendant and Butler ripped a telephone cord from the

wall and tied Thompson up with his hands behind his back in the

living room. They also woke Tripp and tied her in a similar

manner. They demanded money, and the defendant rummaged through

the house while Butler sat holding Thompson at gunpoint.

Eventually they demanded Tripp's automated teller machine (ATM)

card and its personal identification number (PIN),9 which she

gave to the defendant. The defendant left the house to use the

ATM, while Butler stayed, "beating [Thompson] around on the

floor."

distinction is not relevant, we refer to the vehicle as
Thompson's for the sake of brevity.
9
The defendant testified that he had previously met
Thompson through DaSilva and occasionally sold him crack
cocaine. He also testified that he had Tripp's automated teller
machine card because Thompson had traded it to him in exchange
for crack cocaine on February 12, 2004, several hours before the
murder.
 8

The defendant went to an ATM in Codman Square, which was

located a few minutes from Thompson's and Tripp's building.

Between 1:49 and 1:50 A.M., he tried to withdraw money from the

ATM five times, before successfully obtaining forty dollars.

One minute later, he went to another ATM in the area and

unsuccessfully tried to withdraw more money. He then returned

to the condominium.

On his return, the defendant told Butler that he did not

get any money. Tripp explained that her account was empty

because a check she had received had not cleared yet. At that

point, the defendant went into the kitchen, returned with a

knife, grabbed Tripp by the back of the head, and cut her

throat.

On hearing Tripp scream, Thompson jumped up and tried to

push the defendant out of the way. As Thompson jumped toward

the defendant, Butler fired one shot and hit Thompson in the

side of the head.10 The bullet exited near his left eye.

Thompson immediately lost consciousness and fell to the floor.

When he awoke, Tripp was lying beside him, bleeding and barely

alive. He broke out of his restraints and went into the hallway

looking for help from his neighbors.

10
Butler fired a second shot, which hit Tripp in the arm,
after Thompson lost consciousness.
 9

On answering a knock at his door, Richard Young, Thompson's

neighbor, found Thompson bleeding profusely with his left eye

hanging out of its socket. Thompson testified that he told

Young, "A guy named 'Q' shot me in the head, and Will cut my

girlfriend's throat."11 Young told his wife to telephone 911,

and he telephoned the fire department. Within minutes, the

police and emergency medical technicians (EMTs) arrived.

Thompson repeatedly told the police and medical personnel on the

scene that "'Q' shot him." At some point, Young also heard

Thompson say, "My girlfriend is in the apartment."

The police found Tripp lying on the floor. She was covered

with clothes, and she had a "deep," significant slash across her

neck. She was still alive and struggling to breathe as EMTs

attended to her, but she was pronounced dead on arriving at

Boston Medical Center.

After the shooting, the defendant and Butler took

Thompson's automobile to the nearby Fifield Elementary School

and set it on fire. At approximately 3 A.M., they returned to

DaSilva's house. The two went into DaSilva's bedroom, took off

their clothes, and placed them in a plastic bag. DaSilva

noticed a pair of black leather gloves that appeared to be

stained with blood, prompting her nervously to ask them if it

11
Thompson admitted that he was not sure if Richard Young
understood him, and in fact Young testified only that Thompson
said, "I've been shot."
 10

was blood. Neither responded, and instead Butler counted some

money and gave it to the defendant, who said that after the

stress he had just been through he wanted to get high, to which

Butler responded, "No, not right now, nobody's getting high

right now."

After the defendant left DaSilva's house, she went to take

a shower. Butler followed her into the bathroom and told her

that he (rather than the defendant) had slit Tripp's throat,

saying, "She didn't have to die like that."12 Butler told her

that he and the defendant had tied Thompson and Tripp with

telephone wire before taking Tripp's ATM card. Butler added

that the defendant went to get money from the ATM, and that the

defendant told Tripp that, if he did not get any money, he was

going to slit her throat. Butler also stated that Thompson

started to free himself while he (Butler) was cutting Tripp's

throat, and the defendant responded by shooting Thompson.

12
DaSilva consistently testified at trial that Butler told
her that he, rather than the defendant, killed Tripp, and that
the defendant shot Thompson. What Butler told DaSilva may have
been part of his effort to frighten her into silence. Thompson
testified consistently at trial that he observed the defendant
kill Tripp, and that Butler shot him. Based on the jury verdict
(the defendant guilty of murder in the first degree on theories
of felony-murder and extreme atrocity or cruelty, and Butler
guilty of murder in the second degree), it seems likely that the
jury believed Thompson's testimony and discounted Butler's
overstating of his role in the murder of Tripp and the shooting
of Thompson in his recounting of the details to DaSilva.
 11

Finally, he said that the two left under the assumption that

both Thompson and Tripp were dead.

b. The investigation. The police investigation got

underway immediately after the murder. Extensive fingerprint

and deoxyribonucleic acid (DNA) testing on the clothing, knives,

and other surfaces found in the condominium was conducted, but

did not conclusively link either the defendant or Butler to the

crime scene.

On February 20, 2004, Boston police detectives asked Butler

and DaSilva to come to police headquarters and make statements.

DaSilva was afraid Butler would harm her children if she

implicated him in the murder.13 As a result, DaSilva lied to the

police and told them that Butler had been with her at the time

Tripp was killed. Later, Butler encouraged her to keep her

false story consistent.

On February 23, Thompson gave a statement to Boston police

detectives in which he repeated that Butler had shot him and

that the defendant had slit Tripp's throat. The detectives

intended to conduct a photographic array, when one of them

13
DaSilva testified that Butler took her to a hotel one or
two days after the murder and told her that he might have to
kill the defendant because Thompson had survived. He also told
her that she was to tell the police that he, Butler, stayed with
her the whole night of the murder and did not go anywhere. When
DaSilva suggested she might kill herself, Butler told her that
if she died he would kill her three children. This conversation
made her very frightened for the safety of her children.
 12

knocked over his bag, causing a piece of paper showing six

photographs to fall out. Thompson saw the paper, recognized the

defendant's picture, and said, "That's the guy that had cut

Betsy's throat." He later identified Butler as the shooter in

another photographic array.

On February 26, the detectives asked DaSilva to come back

to the police station for further questioning. Once at the

station, DaSilva admitted that she had lied in her first

statement because of her fear of Butler. She then gave a

different account of what she witnessed the night of the murder,

implicating Butler, although she testified at trial that she had

still held back certain details, including some of Butler's

admissions to her. Butler and the defendant were then arrested

and subsequently indicted.14 We address other relevant facts as

they arise below.

2. Discussion. a. Third-party culprit and Bowden

evidence. In a pretrial motion joined by Butler, the defendant

sought to introduce, through several witnesses and cross

examination, evidence intended to show that a third party --

likely Thompson -- killed Tripp, as well as evidence that the

14
DaSilva testified that in March, 2004, after Butler and
the defendant were arrested and in jail, she received a
telephone call from a third party accompanied by Butler and the
defendant in a three-way conference call. Butler and the
defendant asked her what she had told the police, and she denied
having spoken to them. They then reiterated that she was not to
talk to the police.
 13

police failed to investigate certain statements implicating

Thompson. We discern no error in the judge's rulings excluding

much of the proffered evidence.

The defendant sought to introduce testimony from Natalie

Shaheen, a friend of Tripp, recalling several statements made to

her by Tripp, purportedly showing a deteriorating relationship.

Specifically, it was represented that Shaheen would testify that

Tripp had told her that Thompson had been abusive toward her for

years, both threatening and inflicting physical injury; that she

was frightened of Thompson and the people he brought over to the

condominium as a consequence of his crack cocaine habit, and did

not feel safe in her own home; and that Thompson had told Tripp

many times that he would kill her. Sheehan would also have

testified that Tripp had planned to tell Thompson to move out of

her home, and that Tripp feared that Thompson was "catching on"

to her plan. Finally, Sheehan would have testified that Tripp

stated to her that if she were killed, it would be Thompson who

killed her.

The defendant also sought to introduce evidence through his

cross-examination of Thompson. In particular, he intended to

question Thompson regarding his substance abuse history in order

to impeach his expected testimony that he had only used crack

cocaine once, and that he did not use it on the night of the

murder.
 14

He also intended to question Thompson regarding an incident

between Thompson and a woman named Laura Buchman, in which

Buchman stole a camera from Thompson over a drug dispute and

Thompson allegedly paid several people to beat Buchman up in

retaliation. He further intended to call Buchman as a witness

to describe the camera incident and testify that she and

Thompson often used crack cocaine together without Tripp's

knowledge, and that Thompson acted "crazy" when using cocaine.

The judge excluded all the proffered evidence from Shaheen

and Buchman as either hearsay or irrelevant, and allowed the

defendant to inquire as to Thompson's possession and use of

drugs and his dealings with a drug dealer known as "Tony" or "T"

only in the days immediately preceding the murder. With regard

to Shaheen, the judge determined that her proposed testimony was

hearsay that did not fall within any exception. He noted that

none of the proffered evidence provided a substantial connecting

link to any third-party culprit. In particular, he stated,

"Looking at the whole picture I can't see Thompson as third

party culprit. I can't rationally, without an incredible

imagination, I can't picture him being the culprit. And as far

as a third party unknown drug dealer being the culprit, it just

seems too farfetched and feeble."

"The standard applicable to admission of third-party

evidence in Massachusetts is well settled . . . ." Commonwealth
 15

v. Buckman, 461 Mass. 24, 30 (2011), cert. denied, 132 S. Ct.

2781 (2012). "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 may

introduce evidence that tends to show that another person

committed the crime or had the motive, intent, and opportunity

to commit it." Commonwealth v. Lawrence, 404 Mass. 378, 387

(1989), quoting Commonwealth v. Harris, 395 Mass. 296, 300

(1985).

A judge's discretion to admit third-party culprit evidence

is not without limits. The proffered evidence "must have a

rational tendency to prove the issue the defense raises, and the

evidence cannot be too remote or speculative." Silva-Santiago,

453 Mass. at 801, quoting Rosa, 422 Mass. at 22. See Buckman,

461 Mass. at 32. Further, if the evidence is hearsay not

falling within any exception, it is admissible only if it is

"otherwise relevant, will not tend to prejudice or confuse the

jury, and there are other 'substantial connecting links' to the

crime." Silva-Santiago, supra, quoting Commonwealth v. Rice,

441 Mass. 291, 305 (2004). "Because the issue is one of

constitutional dimension, we are not bound by an abuse of

discretion standard, but rather examine the issue
 16

independently." Commonwealth v. Conkey, 443 Mass. 60, 66-67

(2004), S.C., 452 Mass. 1022 (2008).

The judge did not err in excluding the proffered third-

party culprit evidence here. First, the entirety of Shaheen's

proffered testimony was inadmissible hearsay, and as such was

required to have "substantial connecting links" to the crimes.

See Buckman, 461 Mass. at 32 ("Third-party culprit evidence is

offered for the truth of the matter, and as such it must have

substantial probative value in connecting a third person to the

crime"). While Shaheen's testimony may have shown that the

relationship between Thompson and Tripp was strained, any

inference that Thompson was the culprit is entirely unsupported

by any evidence. Thompson's testimony as to the events of the

evening was largely consistent with DaSilva's testimony, based

on her observations and Butler's admissions to her.15 It was

also consistent with what the responding police and EMTs

observed when they arrived at the scene. The judge concluded,

and we agree, that it strains credulity, and is entirely

speculative, that Thompson slit Tripp's throat, shot himself,

survived, discarded a firearm, and fabricated a story

implicating the defendant and Butler while suffering from a

15
There is nothing in the record to suggest that Thompson
and DaSilva ever had any opportunity or incentive to collude in
constructing consistent versions of the event that evening.
Indeed, Thompson indicated during his testimony that he believed
DaSilva had organized the robbery.
 17

painful and blinding wound that, according to the responding

officers, appeared to be "fatal." See Commonwealth v. O'Brien,

432 Mass. 578, 588-589 (2000) (conversation between victim and

friend about victim's fear of brother-in-law insufficient to

suggest he was third-party culprit who had motive, intent, and

opportunity to commit crime).

The same is true of the proffered evidence that Thompson

was a heavy drug user, had a violent past, and had threatened

Buchman. Where the overwhelming weight of the evidence was

contrary to Thompson being the culprit, and where there was no

evidence suggesting his complicity in the killing, the judge did

not err in concluding that evidence of these prior bad acts did

not support any rational inference linking Thompson to the

crime.

Moreover, where a defendant seeks to admit prior bad acts

of an alleged third-party culprit, he must show that "the acts

of the other person are so closely connected in point of time

and method of operation as to cast doubt upon the identification

of [the] defendant as the person who committed the crime."

Conkey, 443 Mass. at 66, quoting Commonwealth v. Hunter, 426

Mass. 715, 716-717 (1998). Here, none of the excluded evidence

was closely connected in time to the murder. Proffered evidence

that would show that Thompson was a heavy drug user who

occasionally acted "crazy" while using cocaine described
 18

incidents that occurred long before the night of the murder.

Similarly, his alleged dispute with Buchman and hiring of men to

harm her after she stole a camera from him was evidence of an

irrelevant prior bad act. See Commonwealth v. Pimental, 454

Mass. 475, 479 (2009) (prior bad act of third-party culprit not

admissible where it "shared no singular features or striking

resemblance" with crime). It also had no tendency to prove that

anyone other than the defendant committed the crime, given that

there is no reading of the record that suggests either that

Buchman killed Tripp or that the incident was in any way related

to the murder.

Finally, although the judge limited testimony regarding

Thompson's prior drug use, he did allow evidence of Thompson's

use of crack cocaine on the night of the murder and the days

preceding it. Defense counsel was permitted to ask whether

Thompson used crack cocaine the night of the murder, whether

crack cocaine was found in the pants he was wearing that night,

and whether he had arranged to hold crack cocaine for a drug

dealer named "Tony" or "T." Defense counsel was also permitted

to elicit testimony from other witnesses to the effect that

Thompson smoked crack cocaine in the hours preceding the murder

and that crack pipes were found in his bedroom. Thus, although

the judge barred testimony about the full extent of Thompson's

drug use and his behavior while on drugs, the judge admitted
 19

(and the jury heard) substantial testimony about Thompson's drug

use in the days leading up to the murder and his dealings with

"Tony," rendering the excluded evidence cumulative. See

Commonwealth v. Greineder, 458 Mass. 207, 252 (2010);

Commonwealth v. Alammani, 439 Mass. 605, 611-612 (2003).

The defendant also argues that Shaheen's statements about

Tripp should have been admitted -- both through her own

proffered testimony and that of Boston police Detective Russell

Grant, to whom she relayed the information -- in furtherance of

a Bowden defense. See Commonwealth v. Bowden, 379 Mass. 472,

486 (1980). Pursuant to a Bowden defense, a defendant may

introduce evidence regarding the police investigation in order

to create an inference "that the evidence at trial may be

inadequate or unreliable because the police failed to conduct

the scientific tests or to pursue leads that a reasonable police

investigation would have conducted or investigated, and these

tests or investigation may have led to significant evidence of

the defendant's guilt or innocence." Silva-Santiago, 453 Mass.

at 801. "[T]he failure of the police to investigate leads

concerning another suspect is sufficient grounds for a Bowden

defense." Id. at 802. See Commonwealth v. Phinney, 446 Mass.

155, 166 (2006) (police reports admissible to show that police

were on notice of suspect but failed to investigate possible

involvement in murder). "[T]he exclusion of evidence of a
 20

Bowden defense is not constitutional in nature and therefore is

examined under an abuse of discretion standard." Silva-

Santiago, supra at 804 n.26. To determine whether a judge

abused his or her discretion in declining to admit such

evidence, the judge must determine whether the proffered third-

party culprit evidence was provided to the police and, if so,

whether the probative weight of the evidence outweighed the risk

of unfair prejudice to the Commonwealth from turning the jury's

attention to "collateral matters." Id. at 803.

As part of the police investigation, Detective Grant

interviewed Shaheen on February 22, 2004, during which she

provided essentially all of the third-party culprit evidence

that her proffered testimony would have encompassed. That

evidence was properly excluded, however, because its probative

value was negligible. At best, the evidence would have shown

that police failed to investigate Thompson as a suspect despite

being aware of his drug use and his deteriorating relationship

with Tripp. However, where there was no evidence suggesting

that Thompson killed Tripp, or was in any way involved in her

death, the judge properly concluded that the evidence would have

been far more prejudicial than probative.

In any event, the defense was permitted to challenge the

adequacy of the police investigation as a whole. Counsel for

both defendants extensively cross-examined Grant about his
 21

investigation, emphasizing the fact that Grant was aware that

Thompson had repeatedly lied to the police, and that Grant had

done very little to find "T," despite having information

suggesting that he had allegedly fronted Thompson an eight ball

of crack cocaine only days before the murder.16 Defense counsel

also argued in his closing, "The police in this case did not do

the job that each and every one of you should expect to be

done," and argued that a further investigation of Thompson's

drug use might have uncovered a third-party drug dealer or user

who may have committed the crime. Thus, where the issue of an

inadequate investigation was fairly before the jury, the

defendant suffered no prejudice from the exclusion of the

proffered evidence.

b. Hearsay statements. The defendant argues that the

judge erred in allowing DaSilva to testify about the statements

made by the defendant to Butler, which were later relayed to

her, and statements made by Butler to her during the days

following the murder. Because the testimony in question falls

within the joint venture exception to the hearsay rule, we

conclude that there was no error.

Defense counsel objected to the introduction of statements

made by Butler to DaSilva, arguing that the Commonwealth had not

16
Defense counsel through cross-examination and the calling
of its own expert extensively challenged the adequacy of the
forensic investigation conducted by the police.
 22

as of the time of her testimony shown that Butler and the

defendant were engaged in a joint venture. The judge denied the

motion, and defense counsel requested an instruction as to the

joint venture exception to the hearsay rule.17 The judge

instructed the jury, in relevant part:

"[Y]ou may consider against an individual defendant, in
this case, specifically, Mr. Wood, who is not alleged to
have been a party to this conversation, any statements made
by the other alleged participant in the joint venture, that
is allegedly Mr. Butler, only if three things have been
proved to you about that statement, this is the statement
allegedly made by Quincy Butler. First, that other
evidence, apart from the statement, shows that there was a
joint venture between the speaker, that's allegedly Mr.
Butler, and the defendant, Wood. Second, that the
statement was made during the joint venture including the
concealment phase if any. And third, that the statement
was made in order to further or help along the goal of the
joint venture including concealing the alleged crime."

After the limiting instruction, DaSilva testified as to the

details of Butler's admissions to her on the night of the

murder. She testified that Butler told her that the defendant

took Tripp's ATM card and told Tripp that he would slit her

throat if he did not get any money from her account. He went on

to say that, when the defendant returned without any money,

Butler slit Tripp's throat, Thompson broke free of the telephone

cord, and the defendant shot Thompson in the face. DaSilva went

17
The defendant's contention that he accepted the judge's
offer to instruct the jury reluctantly, in order to mitigate the
damage, is entirely unsupported by the record. The judge noted
that, in the prior trials, defense counsel had asked the judge
not to give an instruction, and asked if that was still his
position. Defense counsel then asked for the instruction.
 23

on to testify that, days later, she and Butler went to a hotel,

where Butler told her that he and the defendant had burned

Thompson's vehicle in the parking lot of the Fifield Elementary

School, that Thompson was still alive, and that he "was going to

have to take [the defendant] out" because the defendant did not

succeed in killing Thompson.

"Under the joint venture exception to the hearsay rule,

'[o]ut-of-court statements by joint criminal venturers are

admissible against the others if the statements are made during

the pendency of the criminal enterprise and in furtherance of

it.'" Commonwealth v. Hardy, 431 Mass. 387, 393 (2000), S.C.,

464 Mass. 660 (2013), quoting Commonwealth v. Clarke, 418 Mass.

207, 218 (1994). "The judge need not make a preliminary finding

that a joint criminal enterprise exists as a precondition to

admitting the evidence." Commonwealth v. Colon-Cruz, 408 Mass.

533, 543 (1990). Instead, he or she may allow the admission of

such statements "on the representation of the prosecution that

the Commonwealth will subsequently introduce sufficient evidence

to show that the defendant was part of the conspiracy," and

instruct the jury that they may only consider the statements if

they find that, at the close of evidence, the Commonwealth has

proved the existence of a joint venture beyond a reasonable

doubt. Commonwealth v. Borans, 379 Mass. 117, 145 n.26 (1979).
 24

Here, the judge's instruction to the jury was appropriate,

accurate, and presumably followed by the jury. See Commonwealth

v. Ortiz, 463 Mass. 402, 416 (2012). The evidence clearly

supported a finding by the jury that the defendant and Butler

engaged in a joint venture to rob and murder Tripp.

Although the defendant contends that the joint venture had

ended before Butler's statements were made, the evidence belies

his argument. The defendant's argument that the joint venture

had ended when Butler made his initial statements to DaSilva

"has no merit in light of undisputed evidence that the

challenged statements were made only a few hours after the

crimes." Commonwealth v. Marrero, 436 Mass. 488, 494 (2002).

Immediately before the statements were made, the defendant and

Butler returned to DaSilva's home and disposed of their clothes

in what was inferably an attempt to conceal evidence of the

crimes. Given that the "interests of the [two] men were still

closely bound together, tending to ensure the reliability of

their statements," Colon-Cruz, 408 Mass. at 545, the initial

statements were admissible.

The same is true of the statements made to DaSilva several

days later at a hotel. The jury could have determined that

Butler was still trying to "avoid detection and detention" at

the time, given that he expressed concern that Thompson was

still alive and presumably able to identify him. Clarke, 418
 25

Mass. at 219, quoting Colon-Cruz, 408 Mass. at 545.

Additionally, the jury could have concluded that Butler was

attempting to frighten DaSilva and ensure that she did not speak

to the police, given that she was one of only two people who

could implicate him in the murder. See Commonwealth v. Beckett,

373 Mass. 329, 340 (1977) (one joint venturer making statement

to encourage another not to speak to police supports finding

that statement was made in furtherance of joint venture).

DaSilva testified that she was in fact frightened by Butler's

statements, that she delayed speaking honestly to the police due

to her fear, and that she even considered committing suicide.

Indeed, even after Butler and the defendant were arrested, they

telephoned and spoke to DaSilva in an effort to keep her from

speaking to the police. See note 14, supra. Simply put, the

jury could have concluded that all of the statements were made

in an attempt to conceal evidence of the joint venture, and thus

that they fell well within the established exception to the

hearsay rule.

c. Sleeping juror. The defendant next argues that the

trial judge abused his discretion in allowing a ninety year old

juror, whom other jurors believed had been sleeping, to remain

on the jury. Where the judge conducted a thorough voir dire and

determined that the juror was alert throughout the trial, we

find no error. See Commonwealth v. Beneche, 458 Mass. 61, 78-79
 26

(2010), quoting Commonwealth v. Brown, 364 Mass. 471, 476 (1973)

(judge has discretion in what action to take when confronted

with issue of sleeping juror, and burden is on defendant to show

that judge's decision was "arbitrary or unreasonable"; burden

not met where defense counsel twice opined that juror was

sleeping and judge disagreed based on observations). See also

Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 179-182 (2009)

(defendant's burden not met where judge remarked that juror

"keeps falling asleep" and called for recess to awaken juror).

d. Medical examiner's testimony. The defendant also

argues that he was denied his right of confrontation under the

Sixth Amendment to the United States Constitution and art. 12 of

the Massachusetts Declaration of Rights when the judge permitted

a substitute medical examiner to testify as to facts contained

in Tripp's autopsy report during his direct examination.

Although the defendant is correct, there was no objection,18 and

we conclude that he suffered no prejudice from the error, and

thus there was no substantial likelihood of a miscarriage of

justice. See Commonwealth v. Emeny, 463 Mass. 138, 145-146

(2012).

18
The defendant's argument that he objected to the
testimony of the substitute medical examiner finds no support in
the record. Counsel did not lodge an objection to the testimony
as a whole, and only objected once on direct examination, in
response to the prosecutor's question whether a forensic
pathologist, armed with the information obtained in this case,
could possibly determine the handedness of the killer.
 27

At trial, the Commonwealth presented testimony from Dr.

Richard Evans, a medical examiner and forensic pathologist for

the Commonwealth. Evans testified that he did not perform

Tripp's autopsy, but that it was instead conducted by Dr.

Abraham Phillip. Shortly after completing the autopsy, Phillip

left the medical examiner's office. Evans testified extensively

as to Phillip's determinations and opinions as reflected in the

autopsy report, including Phillip's observations as to the

nature of the wound. Evans added that, on review of all of the

documentation relative to the case, he determined that the cause

of death was the incised wound to Tripp's neck.

As the Commonwealth correctly concedes, Evans should not

have been permitted to testify as to the facts contained in the

underlying autopsy report. See Commonwealth v. Nardi, 452 Mass.

379, 391-394 (2008) (testimony by substitute medical examiner as

to facts and findings in original autopsy report is inadmissible

hearsay). Nevertheless, there was no prejudice.

The improperly admitted testimony consisted of a recitation

of Phillip's observations of Tripp's wounds, facts that were not

in dispute. The defendant raised a third-party culprit defense;

he did not argue that Tripp had not died from a knife wound to

her throat, but that he had not slit her throat. In addition,

the jury heard testimony from police and medical personnel who

testified as to Tripp's wounds, and her medical records
 28

detailing the fatal wound were properly admitted, rendering the

erroneously admitted testimony cumulative. See Commonwealth v.

Reavis, 465 Mass. 875, 884-885 (2013) (erroneously admitted

testimony from substitute medical examiner created no

substantial likelihood of miscarriage of justice where

cumulative of other evidence). Simply put, the defendant was

not prejudiced by the improper testimony about the wound that

caused Tripp's death.

The defendant further argues that Dr. Evans improperly

testified as to the time of death and the left- or right-

handedness of the person who administered the wound. These

claims are without merit. As an initial matter, Evans did not

testify as to the time of death on direct examination. On

cross-examination, defense counsel asked if the time of injury

listed on the death certificate -- approximately 2 A.M. -- was

based on any determination Evans had made. Evans responded that

he made no actual determination regarding either the time of

injury or the time of death based on his own observations, but

instead relied on information he received from police. He added

that, while the actual time of death was difficult to determine,

Tripp likely died within minutes of the injury.19,20 A surrogate

19
Because Dr. Abraham Phillip left the medical examiner's
office before completing the autopsy paperwork and death
certificate for Tripp, Dr. Richard Evans completed and signed
both documents based on a review of Phillip's notes and records.
 29

examiner may "offer an expert opinion on the time that would

have elapsed between injury and death" based on his or her

"review of an autopsy report by the medical examiner who

performed the autopsy." Reavis, 465 Mass. at 883. Thus, where

Evans did not recite findings by Phillip regarding the time of

death, but rather testified as to his own independent opinion,

there was no error.

Similarly, and contrary to the defendant's assertions,

Evans did not recite any of Phillip's findings regarding the

handedness of the killer. Instead, he testified that, in his

expert opinion, he could not testify to a reasonable degree of

medical certainty as to the left- or right-handedness of the

killer.21 Again, it was proper for Evans to give his medical

opinion based on "documents upon which experts are accustomed to

rely, and which are potentially independently admissible through

appropriate witnesses." Reavis, 465 Mass. at 883.

Even if Evans's testimony regarding the time of death and

the handedness of the killer had been admitted erroneously, the

defendant would not have been subject to a substantial

likelihood of a miscarriage of justice. The time of death was,

20
The death certificate reflects that Tripp was declared
dead at 2:35 A.M.
21
As both the defendant and Butler are left-handed, the
defendant attempted to show that the killer was necessarily
right-handed.
 30

at best, collateral to his theory of defense, namely, that

another person had committed the crime. Although the amount of

time Tripp survived after the wound was relevant in considering

whether the murder was committed with extreme atrocity or

cruelty, Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983), the

jury heard other evidence that she was alive when medical

personnel arrived. Further, Evans's testimony did not harm the

defendant, as he did not testify that the killer was necessarily

left-handed. In fact, counsel for Butler extensively cross-

examined Evans about the handedness of the killer, and counsel

for the defendant argued in closing that Evans's testimony

actually supported the theory that a left-handed person (which

both the defendant and Butler claimed to be) could not have

committed the murder. Thus, where the testimony was ambiguous,

at worst, and helpful to the defendant, at best, there was no

prejudice.

e. Prosecutor's closing argument. The defendant next

argues that the judge committed reversible error in not granting

a mistrial after the prosecutor argued in closing that Thompson

said he "loved" Tripp. While the prosecutor's statement was

unsupported by the evidence, we conclude that the error does not

require reversal of the defendant's convictions.

Prior to closing arguments, counsel for Butler requested

permission to argue that the evidence supported a fair inference
 31

that the relationship between Thompson and Tripp had

deteriorated, and that Tripp planned to leave Thompson, in an

effort to support his theory that Thompson was responsible for

her death. The Commonwealth argued that the defense should be

precluded from doing so. The judge denied defense counsel

permission to make the argument where evidence of the

deteriorating relationship between Tripp and Thompson had been

excluded from evidence.

During his closing argument, the prosecutor stated the

following: "The bottom line that you're going to have to ask

yourself about Morris Thompson is what motive does he have to

lie? What motive does he have to continually come in here year

after year, however many times he's given statements, to subject

himself to hours of cross examination. What motive? Mr.

Thompson, walking around completely mutilated for the rest of

his life. His eye is missing. He's walking around with one eye

and the remnants of a bullet in his head. He watched his

girlfriend, a woman who he said he loved, brutally murdered

before his eyes, and they want you to believe that he's just

protecting the real killers. Are you kidding?" (Emphasis

added.)

Defense counsel for Butler objected to the prosecutor's

statement and asked for an immediate curative instruction. The

judge took the request under advisement and dismissed the jury
 32

for the day. The next day, the judge told the prosecutor, "I

wasn't too keen about the fact that you explicitly said [that

Thompson loved Tripp]." He added, "I think in the overall

context of me trying to put the quash on that type of effort by

the defense, it seems a little disingenuous for you to state it

in the final argument." He thus agreed to specifically instruct

the jury to disregard the prosecutor's statement.22

The judge gave the curative instruction as part of his

final charge to the jury. He instructed them as follows: "Also

there was some statement that Morris Thompson loved Betsy Tripp.

Well, maybe he did and maybe he didn't, but there's no evidence

of it, so you are to disregard, disregard that statement made by

one of the attorneys in the course of the final argument. And

in any event, I stress, arguments are not evidence." Defense

counsel for Butler objected to the instruction, arguing, "When

you said 'maybe he did, maybe he didn't,' I think that dilutes

the importance of telling the jury, you can't consider that, it

was improper. Because I want it stricken from memory as best we

22
The judge noted, "I know also in the overall context of
the case it may be minor . . . but I do think that [defense
counsel] is correct in that I should tell the jury to disregard
that. Now it's a matter of degree. [Defense counsel] would
perhaps prefer the strongest possible corrective, which I don't
think is necessarily called for. But I do think that the
defendants are correct in asking me to draw the jurors'
attention to it and to tell them to disregard it . . . ."
 33

can." The judge subsequently denied Butler's counsel's motion

for a mistrial.

On review of the entire transcript, we agree that Thompson

did not expressly testify that he "loved" Tripp.23 We agree with

the judge's assessment that the statement was made in error, a

point that the Commonwealth concedes. In determining whether

such an error requires reversal, we consider "(1) whether the

defendant seasonably objected; (2) whether the error was limited

to collateral issues or went to the heart of the case; (3) what

specific or general instructions the judge gave to the jury

which may have mitigated the mistake; and (4) whether the error,

in the circumstances, possibly made a difference in the jury's

conclusion." Commonwealth v. Lewis, 465 Mass. 119, 130-131

(2013), quoting Commonwealth v. Kater, 432 Mass. 404, 422-423

(2000). Where, as here, the error is properly objected to, we

review the entire record to determine "whether the error was

prejudicial to the point of requiring a reversal of the

conviction." Commonwealth v. Kozec, 399 Mass. 514, 523 (1987).

23
Thompson did testify that he dated Tripp for eight years
and lived with her for seven. He referred to her as a "lovely
lady" and "my girl," and became visibly emotional when shown her
picture. Counsel in closing "may argue fair inferences that
might be drawn from the evidence," Commonwealth v. Murchison,
418 Mass. 58, 59 (1994), and it may indeed be a fair inference
that Thompson loved Tripp. However, the prosecutor did not
argue that Thompson loved Tripp, but that Thompson said that he
loved her. Thompson did not testify as such, despite ample
opportunities to do so over the course of his lengthy testimony.
The statement was therefore error.
 34

See Commonwealth v. Yesilciman, 406 Mass. 736, 746 (1990). We

conclude that the judge's specific curative instruction

regarding the statement was adequate to prevent any risk of

prejudice. He explicitly told the jury that it had been argued

that Thompson loved Tripp, that there was no such testimony

given, and that the statement should be ignored. He then

stressed that closing arguments are not evidence. The jury are

presumed to have followed the judge's instructions, Commonwealth

v. Sylvia, 456 Mass. 182, 195 (2010), and specific curative

instructions are ordinarily sufficient to cure any

misstatements. See Commonwealth v. Viriyahiranpaiboon, 412

Mass. 224, 232 (1992); Commonwealth v. Palmariello, 392 Mass.

126, 133 (1984).

In addition, we cannot say that the error, taken in

context, made a difference in the jury's conclusion. It was a

single statement made in the course of a lengthy closing

argument. The prosecutor was attempting to rebut defense

counsel's argument that Thompson was not credible and was

motivated to lie to protect himself or the third-party killer.

The prosecutor properly responded by pointing out that Thompson

had no motive to lie and that he was nearly killed in the same

assault. To be sure, he should have avoided comment on the

nature of the relationship between Thompson and Tripp,

particularly where he had moved to exclude reference to their
 35

relationship during the defendant's closing argument. However,

Thompson was exhaustively cross-examined, and defense counsel

ably challenged his credibility throughout the trial. Thus, the

jury's determination on the issue of Thompson's credibility was

not likely to have been swayed by an isolated use of the word

"loved" in closing. See Commonwealth v. Gomes, 443 Mass. 502,

510 (2005) (prosecutor's isolated slip of tongue harmless beyond

reasonable doubt because of strength of Commonwealth's case and

judge's instruction that closing statements are not evidence).

f. Purportedly perjured testimony of Thompson and DaSilva.

The defendant argues that the judge erroneously denied his

motion to dismiss the indictments against him because they were

obtained through perjured grand jury testimony from Thompson and

DaSilva. We find no error.

Prior to trial, counsel for Butler filed a "motion to

dismiss the indictments or to provide alternative relief at the

fourth retrial of this matter." Counsel for the defendant

joined in the motion. The defense collectively argued that

Thompson and DaSilva had made inconsistent statements throughout

their testimony in the three prior trials, and that Thompson

specifically committed perjury before the grand jury when he

denied that he was a drug user, a fact that was contradicted by

the testimony of several other witnesses at both the grand jury

and the prior trials. They contended, "[I]t is beyond question
 36

that Morris Thompson is a liar and a perjurer and his testimony

is therefore unreliable and cannot be used at trial." They

argued the same regarding DaSilva's testimony.

For these reasons, the defense asked the judge to dismiss

the indictments as obtained through perjury. In the

alternative, they asked the judge to (1) require the

Commonwealth to provide to defense counsel all statements by

Thompson and DaSilva it knew to be false; (2) require that the

Commonwealth provide notice of any statements it intended to

introduce that were inconsistent with statements made at

previous trials; and (3) allow the defendant to impeach Thompson

and DaSilva with inconsistent statements concerning substance

abuse and prior bad acts. The judge denied the motion.

As a general rule, "a court should not inquire into the

adequacy or competency of the evidence upon which an indictment

is based." Commonwealth v. Salman, 387 Mass. 160, 166 (1982).

However, if "it appears that the integrity of the grand jury

process has been impaired, a defendant may attack the validity

of the indictment by way of a motion to dismiss." Id. It is

undisputed that "the knowing use by the Commonwealth or one of

its agents of false testimony to procure an indictment is a

ground for dismissing the indictment." Id.

When arguing that a prosecutor knowingly presented false

testimony to a grand jury, "[t]he defendant bears the heavy
 37

burden of proving that '(1) the evidence was given to the grand

jury knowingly or with a reckless disregard for the truth and

for the purpose of obtaining an indictment, and (2) that the

evidence probably influenced the grand jury's determination to

indict the defendant.'" Commonwealth v. Collado, 426 Mass. 675,

680 (1998), quoting Commonwealth v. Kelcourse, 404 Mass. 466,

468 (1989). The defendant has not met his burden here.

Although the defendant denied being a crack cocaine user

before the grand jury, the prosecutor elicited contradictory

testimony at the grand jury from another witness indicating that

Thompson had, in fact, used cocaine the night of the murder.

Thus, the prosecutor did not attempt to secure an indictment by

leaving the jury with the impression that Thompson had not used

drugs that night. See Commonwealth v. Mayfield, 398 Mass. 615,

621 (1986).

Further, while Thompson and DaSilva both changed their

testimony in some respects at trial, the defendant overstates

the extent of their inconsistencies. Both at the grand jury and

at trial, Thompson's version of the most important facts was

essentially the same. Without fail, he consistently testified

that he went to DaSilva's home on the night of the murder; that

Butler produced a silver gun, robbed him, and ordered him to his

automobile along with the defendant; that Butler and the

defendant used a telephone wire to tie up him and Tripp; that
 38

Tripp gave the defendant her ATM card and PIN; that Butler

stayed behind while the defendant attempted to withdraw money;

that the defendant slit Tripp's throat when he was unable to

withdraw any significant amount of money; and that Butler shot

him in the head when he tried to go to Tripp's aid.

Similarly, DaSilva always testified that Thompson went to

her apartment on the night of the murder; that Butler pulled out

a silver gun and left with Thompson and the defendant; that

Butler and the defendant returned to the apartment later, took

off their clothes, and put them in a plastic bag; that blood

appeared to be on a pair of gloves they had; that she spoke to

Butler while she was in the bathroom; that Butler told her he

had slit Tripp's throat because there was no money in her

account; and that he told her that the defendant shot Thompson

when he attempted to help Tripp.

While the defendant correctly points out a number of

differences between the testimony of Thompson and DaSilva given

before the grand jury and in their testimony in the later

trials, "[p]resentation of a witness who recants or contradicts

his prior testimony is not to be confused with eliciting

perjury." Commonwealth v. McLeod, 394 Mass. 727, 743-744, cert.

denied sub nom. Aiello v. Massachusetts, 474 U.S. 919 (1985),

quoting United States v. Holladay, 566 F.2d 1018, 1019 (5th Cir.

1978). Given that both witnesses' versions of the core facts of
 39

the case remained essentially the same at all proceedings, and

given that their testimony corroborated each other's stories,

the prosecutor did not knowingly elicit perjury. See

Commonwealth v. Miranda, 458 Mass. 100, 111 (2010), cert.

denied, 132 S. Ct. 548 (2011) (no indication that prosecutor

elicited perjured testimony where "there were some

inconsistencies" between testimony from two witnesses but "many

details corroborated each other").

Just as importantly, the defendant has not met his burden

of showing that Thompson's testimony that he did not use crack

cocaine on the night of the murder "probably influenced the

grand jury's determination to indict the defendant." Collado,

426 Mass. at 680, quoting Kelcourse, 404 Mass. at 468. The core

issue before the grand jury was simply whether the defendant and

Butler murdered Tripp. Where the grand jury heard substantial

evidence regarding the defendant's participation in the murder

presented before the grand jury, it is highly unlikely that the

issue of Thompson's drug use had any impact on the jury's

decision to indict the defendant, especially where evidence was

presented suggesting that he had, in fact, used crack cocaine

that night. See Commonwealth v. Rice, 441 Mass. 291, 310

(2004).

We also find no merit to the defendant's contention that

the judge should have allowed his motion for alternative relief.
 40

The defense, having tried the case three times, was fully aware

of the witnesses' inconsistencies prior to trial.24 The

defendant's due process rights were not violated where the facts

that went to the heart of the case remained essentially

unchanged throughout the trials. Further, the defense

extensively and effectively cross-examined both witnesses

regarding their inconsistencies, and counsel for both defendants

adequately argued against Thompson and DaSilva's credibility in

closing. Commonwealth v. Gagliardi, 29 Mass. App. Ct. 225, 236

n.9 (1990) ("Even if the Commonwealth was obligated to inform

the defendant of [any] changes" in testimony, failure to do so

not prejudicial where counsel "effectively cross-examined both

witnesses"). Thus, the judge did not err in denying the

defendant's motion.

g. Press release. After closing arguments, but before the

final jury charge was given, defense counsel informed the court

that the Suffolk County district attorney's office had issued a

press release on its Web site the previous night regarding the

case.25 The press release summarized the facts of the case and

24
The Commonwealth also provided defense counsel with new
statements made by Thompson and DaSilva prior to trial.
25
The trial prosecutor stated that he had not seen the
press release, and there is no reason to believe that he was
involved in the decision to publish it. However, the
Commonwealth is responsible for the conduct of all of the
employees in the Suffolk County district attorney's office, so
 41

quoted the prosecutor's closing argument. Of particular

relevance, the press release noted that the trial was the fourth

for both defendants. It stated that "[t]he first proceedings

ended in an [eleven] to one impasse, with jurors favoring

conviction; the second trial ended abruptly when the presiding

judge took ill; and the third ended in another hung jury, this

one favoring conviction [ten] to two." Press Release, Suffolk

County District Attorney's Office, 4th Trial Ends for Duo

Accused of Brutal Murder, Attempt (June 2, 2009).

The prosecutor then informed the judge that an article

about the case had been published in the daily Metro newspaper

that morning. Similar to the press release, the article

referenced the fact that the trial was the fourth for the

defendants, and noted the vote counts of the prior juries. It

also summarized the facts and quoted closing arguments for both

the prosecutor and the defense.

The judge proceeded to ask the jury whether they had read

anything about the case in the media. Three jurors -- jurors

nos. 6, 4, and 1 -- all answered in the affirmative, and the

judge conducted an individual voir dire of each of them. Juror

no. 6 explained that he had read the article, and that it "said

that closing arguments occurred, it had a few quotes from

the prosecutor's lack of involvement does not bear on our
analysis of the conduct.
 42

closing arguments, and that basically it was the fourth trial."

Juror no. 4 said that she had simply scanned the article, and

stated that it included "[n]othing [she] didn't know." Juror

no. 1 stated that she did not read the text of the story, and

only saw the headline, which contained no information about the

existence of prior trials or their vote counts. None of the

jurors stated that he or she had taken note of the prior vote

counts, and all three averred that they could remain impartial.

Immediately following this voir dire, neither defense attorney

objected or asked for a mistrial, and counsel for the defendant

simply asked for an instruction that the jury not read anything

about the case in the media. Later that day, following the

final jury charge, counsel for Butler, joined by counsel for the

defendant, moved for a mistrial upon their discovery that the

article referenced the vote counts of the prior juries, and the

judge denied their motion. Significantly, and fortunately for

the Commonwealth, jurors nos. 6 and 4 were ultimately designated

as alternate jurors, and did not participate in deliberations.

The defendant now contends that the district attorney's

office's decision to issue the press release constituted

egregious government misconduct necessitating reversal.

"Dismissal of criminal charges . . . is the most severe sanction

that the court can impose in a criminal case to remedy

misconduct on the part of the Commonwealth." Commonwealth v.
 43

Mason, 453 Mass. 873, 877 (2009). Such relief should be

reserved for "only the most intolerable government conduct."

Commonwealth v. Monteagudo, 427 Mass. 484, 485 n.1 (1998),

quoting United States v. Restrepo, 930 F.2d 705, 712 (9th Cir.

1991). However, "[w]e have delineated limited circumstances for

dismissing a complaint due to prosecutorial misconduct: . . .

if the 'governmental conduct resulted in such irremediable harm

that a fair trial of the complaint or indictment is no longer

possible' . . . and where the prosecutor's conduct is otherwise

so egregious that dismissal is warranted to deter similar future

misconduct" (citations omitted). Commonwealth v. Merry, 453

Mass. 653, 665-666 (2009). See Oregon v. Kennedy, 456 U.S. 667,

676 (1982).

We conclude that the Commonwealth's actions were egregious.

While the jurors were likely aware that there had been previous

trials, due to the amount of time that had passed since the

murder and the innumerable references to prior proceedings, the

press release contained vote counts that showed that two prior

juries strongly favored conviction. It also presented the facts

of the case in sensationalized terms26 that exclusively favored

the Commonwealth's theory of the case. Had the press release

26
For example, the press release discussed Tripp's
"horrific death" in the course of a "brutal murder," and cited
the prosecutor's statement that Tripp's "life literally drained
out of her body."
 44

been seen by any of the jurors, it easily could have caused a

substantial likelihood of a miscarriage of justice by informing

them that twenty-one of the twenty-four jurors who had

previously heard the evidence believed the defendant and Butler

to be guilty.

The Commonwealth's contentions are unavailing. First,

although the information in the press release had been in the

public domain, the Commonwealth knew, or should have known, that

the jurors would not likely seek out such information, and that

the breakdown of the prior vote counts was highly prejudicial.

Additionally, the Commonwealth's argument that there is no

evidence that the press release was the basis for the article

strains credulity, where it was published the morning after the

press release was issued and referenced the prior vote counts.

In any event, even if the press release had not been the basis

for the article, the Commonwealth should have known that the

press release contained prejudicial information that it made

available for use by the media at a critical moment in the

trial, and thus its decision to issue the press release was, at

best, gross negligence.

However, our examination does not end with a determination

that the Commonwealth's conduct was egregious. The defendant is

entitled to dismissal only where the conduct in question was of

"sufficient significance to result in the denial of the
 45

defendant's right to a fair trial." Commonwealth v. Dabrieo,

370 Mass. 728, 743 (1976), quoting United States v. Agurs, 427

U.S. 97, 108 (1975). Here, the judge conducted a thorough voir

dire and determined that only three jurors had seen the article.

Of those jurors, only one took part in deliberations, and she

had read only the headline, which contained no potentially

prejudicial information. We cannot say that the judge abused

his discretion in determining that the jurors had not been

"contaminated by extraneous information." Commonwealth v.

Jackson, 391 Mass. 749, 756 (1984).27

h. Inconsistent verdicts. The Commonwealth proceeded at

trial under the theory that the defendant and Butler were liable

as joint venturers for the death of Tripp in a botched robbery.

Accordingly, the judge instructed the jury as to the elements of

joint venture liability. The defendant was convicted of murder

in the first degree based on the theories of extreme atrocity or

cruelty and felony-murder, and Butler was convicted of murder in

the second degree on the theory of felony-murder. The defendant

argues that the verdicts were inconsistent.

"That breed of 'inconsistent' verdicts which is not allowed

to stand under our cases is small . . . ." Commonwealth v.

27
Our conclusion that the defendant was not deprived of a
fair trial and that the trial judge did not abuse his discretion
in the circumstances might have been different had jurors nos. 6
and 4, who served as alternate jurors, taken part in the
deliberations.
 46

Scott, 355 Mass. 471, 475 (1969). "We have applied the so-

called 'rule of consistency' to reverse convictions only where

three elements are present: 'a crime charged that by its nature

requires a combination of individuals; a single trial of all the

participants in the crime; and an acquittal of all but one of

the participants.'" Commonwealth v. Fluellen, 456 Mass. 517,

520 (2010), quoting Commonwealth v. Medeiros, 456 Mass. 52, 59

(2010). Here, the first and third requirements are not met, and

thus the defendant's argument fails.

"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." Fluellen, 456 Mass. at 520-521. See Medeiros, 456

Mass. at 59-60 (crime requiring combination of individuals must

be defined by "united act" of two or more individuals, where

such united act is element of crime charged). While joint

venture liability requires a combination of individuals, it is

not an underlying crime. The underlying crime here is murder,

which does not "by its nature require[] a combination of

individuals." Moreover, the defendant cannot meet the third

requirement, which necessitates an acquittal of all but one of

the defendants. Although Butler was convicted of a lesser

offense, he was still found guilty of murdering Tripp.
 47

In any event, "inconsistent verdicts for joint venturers

tried together does not undermine our deference to juries."

Fluellen, 456 Mass. at 523. We generally tolerate inconsistent

verdicts "because of the jury's inherent power to indulge their

compassion and to enter into compromises." Id. See Scott, 355

Mass. at 475. Although the defendant contends that the verdicts

in this case "make[] no sense," there was sufficient evidence to

prove that the defendant, and not Butler, fetched a knife from

the kitchen and slit Tripp's throat. The jury acted well within

their discretion in deciding to hold the defendant responsible

to a greater degree than Butler.

i. Jury questions. The defendant also argues that the

judge improperly answered two questions from the jury regarding

joint venture liability. "The proper response to a jury

question must remain within the discretion of the trial judge,

who has observed the evidence and the jury firsthand and can

tailor supplemental instructions accordingly." Commonwealth v.

Delacruz, 463 Mass. 504, 518 (2012), quoting Commonwealth v.

Bell, 455 Mass. 408, 420 (2009).

During the sixth day of deliberations, the judge received

two questions from the jury. The first asked: "If the jury

find[] that there was a joint venture in the commission of a

murder, can the degree of murder differ between the principal

and the joint venturer?" The second asked: "If there is a
 48

finding of joint venture, can the theories of murder differ

between the principal and the joint venturer?" After a lengthy

discussion with counsel, the judge answered both questions in

the affirmative, over objection from the defendant. We conclude

that the judge's answers were not erroneous in the

circumstances, based on the evidence before the jury in this

case.28

The jury were required first to determine whether the

defendant and Butler participated in the kidnapping, robbery,

murder, and shooting alleged in this case. Both the defendant

and Butler testified that they had no involvement in the crimes

and were not present when they occurred. Thompson testified to

the opposite, and identified the defendant as the person who

murdered Tripp when the robbery was unsuccessful and Butler as

the person who shot him. If the jury rejected the testimony of

the defendant and Butler as to their noninvolvement in the

crimes, which the jury plainly did, the jury were confronted

with conflicting testimony as to which of the two committed

which of the felonious acts and, ultimately, the degree of

culpability that the jury would assign to their conduct. In

these circumstances, it was proper for the jury to consider the

defendant and Butler as joint venturers, knowingly participating

28
We need not decide whether the proposition of law drawn
from the jury's questions and the judge's affirmative responses
regarding joint venture liability would be correct in all cases.
 49

in the commission of some or all of the several crimes charged,

but assigning a different level of culpability in the resulting

murder, so long as the defendant and Butler each had, at a

minimum, the required intent for the crimes of which they were

convicted. Thus, the jury could, in the exercise of their

discretion, permissibly find the defendant and Butler guilty of

a different degree of murder, even based on different theories.

The jury found Butler guilty, and the defendant not guilty,

of assault and battery by means of a dangerous weapon (a

firearm) on Thompson. Taken in context, it is clear that the

jury credited Thompson's account of the events: that the

defendant slit Tripp's throat and Butler shot Thompson. Thus,

it is apparent that they intended to find the defendant guilty

of murder in the first degree under at least the theory of

extreme atrocity or cruelty, and were merely attempting to

determine whether they could hold Butler responsible to a lesser

degree or under a different theory.

The defendant essentially seems to argue that, if he and

Butler were both found guilty of armed robbery as joint

venturers -- a predicate felony for felony-murder in the first

degree -- Butler should also have been convicted of murder in

the first degree. To be sure, the jury could have so found.

However, the jury have the inherent power to enter into

compromises in reaching their verdict. Fluellen, 456 Mass. at
 50

523. The verdict here does not indicate that the jury were

confused, but rather that they entered into a compromise in

finding Butler guilty of murder in the second degree where they

believed that the defendant, and not Butler, slit Tripp's

throat. Regardless of the correctness of the judge's answers to

the questions, the defendant was not prejudiced by the jury's

conscious decision to hold Butler responsible to a lesser degree

than they were legally permitted to.29

j. General Laws c. 278, § 33E. We have reviewed the

record in accordance with G. L. c. 278, § 33E, to determine

whether there is any basis to set aside or reduce the verdict of

murder in the first degree, regardless of whether such grounds

were raised on appeal. We find no such reason, and we decline

to exercise our powers under the statute. We therefore affirm

the defendant's convictions. We also reinstate the defendant's

two convictions of armed robbery, which the trial judge had

dismissed as the felonies underlying the felony-murder

conviction and therefore duplicative. The case is therefore

29
The defendant also briefly argues that the absence of
special verdict slips requiring unanimity as to joint venture or
principal liability confused the jury. To the contrary, we have
held that permitting general verdict slips is preferable in
order to mitigate confusion attached to the "false distinction"
between principal liability and joint venture liability.
Commonwealth v. Zanetti, 454 Mass. 449, 464, 466-467 (2009).
Again, where the jury appear to have entered into a compromise
regarding Butler's liability, there was no likelihood of
confusion and no prejudice suffered by the defendant.
 51

remanded to the Superior Court for sentencing on these two

reinstated convictions.

So ordered.