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SJC-11339
COMMONWEALTH vs. EDMOND J. CARRIERE, JR.
Barnstable. May 9, 2014. - October 28, 2014.
Present: Spina, Cordy, Duffly, & Lenk, JJ.
Homicide. Joint Enterprise. Evidence, Joint venturer,
Testimonial statement, Pattern of conduct, Subsequent
misconduct, Prior misconduct, Motive, State of mind,
Declaration against interest. Constitutional Law,
Confrontation of witnesses. Practice, Criminal, Capital
case, Confrontation of witnesses, Argument by prosecutor,
Presumptions and burden of proof.
Indictment found and returned in the Superior Court
Department on July 13, 2010.
The case was tried before Robert C. Rufo, J.
Neil L. Fishman for the defendant.
Julia K. Holler, Assistant District Attorney, for the
Commonwealth
DUFFLY, J. On January 3, 1980, at approximately 8 P.M., the
victim, who was the defendant's wife, was found dead on the
bathroom floor in her home in Bourne. She had died "quite some
time" earlier of multiple stab wounds. When the victim's body
2
was discovered, the defendant and his fourteen year old daughter,
who lived with the victim, were in Florida visiting one of the
defendant's older daughters. In June, 2005, Steven Stewart, the
man who stabbed the victim, was convicted of murder in the first
degree; this court reversed his conviction in 2009 based on
errors in the admission of testimony by a key witness. See
Commonwealth v. Stewart, 454 Mass. 527, 527-528 (2009). The
defendant was indicted in July, 2010, after Stewart entered into
a plea agreement under which he pleaded guilty to manslaughter,
agreed to testify against the defendant, and was sentenced to
time served.
The Commonwealth's theory at trial was that the defendant,
who was in the midst of a highly contentious divorce from the
victim, had engaged in a murder-for-hire scheme with Stewart and
their mutual friend Richard Grebauski.1 Grebauski, the alleged
middleman, arranged to hire Stewart for $5,000 after accepting
the defendant's offer of $10,000 to kill his wife. The
Commonwealth's case relied heavily on evidence introduced through
Stewart, who testified both to his own actions and to out-of-
court statements by other asserted members of the joint venture,
including Grebauski. The remainder of the evidence was based
largely on out-of-court statements introduced by witnesses to
1
Richard Grebauski also was indicted for murder, but died
in 2004, prior to his trial.
3
those statements, such as the defendant's friends and neighbors
Russell Breault, Charles Berryman, and David Phinney. A police
report and a letter sent to the police, containing additional
statements, were introduced in evidence by stipulation. In May,
2012, a Superior Court jury found the defendant guilty of murder
in the first degree on theories of deliberate premeditation and
extreme atrocity or cruelty. See G. L. c. 265, § 1.
On appeal, the defendant challenges the admission of a
number of out-of-court statements introduced through Stewart's
testimony under the joint venture exception to the hearsay rule;
the defendant contends that the Commonwealth did not prove the
existence of a joint venture, and also that some of the
statements were made outside the period in which the joint
venture allegedly occurred. The defendant maintains further that
errors in the admission of impermissible and highly prejudicial
propensity evidence, the judge's decision not to allow testimony
concerning purportedly exculpatory statements made by Grebauski,
and improper remarks in the prosecutor's closing argument require
a new trial. The defendant objected to certain of the
evidentiary rulings and to some of the prosecutor's remarks at
trial; other asserted errors were unpreserved. The defendant
also requests that we exercise our authority under G. L. c. 278,
§ 33E, to grant him a new trial.
We conclude that there was no prejudicial error or
4
substantial likelihood of a miscarriage of justice in any of the
challenged evidentiary rulings, or in the prosecutor's closing
argument. After careful review of the record pursuant to G. L.
c. 278, § 33E, we discern no reason to order a new trial or to
reduce the degree of guilt.
Trial evidence. We recite facts the jury could have found,
reserving additional detail for later discussion.
In the months prior to the killing, the defendant and his
wife were engaged in a hotly contested divorce. The defendant
told a number of his friends that his wife intended to take the
marital home and "everything else" in the divorce. At one point,
he told Grebauski, in Stewart's presence, that he had offered his
wife money to "just go away," but she refused. Approximately two
to three months before the victim was killed, the defendant,
Breault, and Berryman were at Berryman's house, drinking beer,
when the defendant asked if they wanted to "make some money."
When Berryman responded affirmatively, thinking the defendant
meant a job installing vinyl siding, the defendant explained that
it was not a siding job, but that he would pay $2,000 for killing
his wife, because she was going to take everything in the
divorce. The defendant also said that, "[i]f [his] wife takes a
dime, . . . he would pay $1,000 to get it back." Breault and
Berryman thought that the defendant was joking. At some point
either during or shortly after this conversation, Phinney
5
arrived.
In December, 1979, when the defendant was at Grebauski's
house, he asked if Grebauski "knew anyone big, big and black that
would go in there and do things to his wife that she would never
forget" while the defendant was in Florida with his fourteen year
old daughter, Ginger Kirby. Both Stewart and Shannon Glover
Grebauski, Grebauski's then girl friend,2 heard the defendant
talking about the divorce and his desire that his wife were dead.
At some point thereafter, Grebauski approached Stewart,
saying that he "[had] a deal for" Stewart, and that the defendant
had offered Grebauski $5,000 to kill the defendant's wife.
Stewart initially declined the offer, but, after continued
"prodding" by Grebauski, eventually agreed to kill the
defendant's wife because he owed Grebauski $500 for purchases of
cocaine. Approximately a week before the victim was stabbed,
Stewart told his friend Stephen Tracy that "Grebauski had
somebody who wanted him to do his old lady."
Around December 10, 1979, a week before school vacation was
to begin, the defendant and his daughter Kirby, who lived with
the victim, left to visit the defendant's older daughter, Linda
McCraney, who lived in Florida. Kirby stayed with McCraney in
2
At the time of the stabbing, Richard Grebauski and Shannon
Glover had been living together for approximately ten years.
They married in February, 2003.
6
McCraney's mobile home,3 and the defendant stayed with his girl
friend and her family. During that time, the defendant made a
number of derogatory comments about his wife, including telling
McCraney several times that her mother "was a whore" who was
sleeping with everyone on Cape Cod, and that, "if [she] continued
with the divorce she would be sorry for what she had done."
McCraney thought that her father and sister would return to
Massachusetts before school resumed on January 3 or 4, 1980, but,
on January 3, they had not left and showed no signs of leaving.
When McCraney asked the defendant about his plans, the defendant
said that "it was none of [her] goddamn business and that he
[would] leave whenever he[ was] ready to leave."
On January 3, 1980, the day planned for the killing, Stewart
went to Grebauski's house. Grebauski received a telephone call
from the defendant in Florida; the defendant said that "it had to
be done that night" because Kirby needed to return to school.
Grebauski gave Stewart one of two fillet knives that were kept on
the kitchen windowsill, and a pair of gloves. Grebauski told
Stewart that the victim would be alone in the house, because her
son would be working and her daughter was in Florida. He told
Stewart to just walk into the house and stab the victim in the
heart.
When Stewart drove to the victim's house for the first time
3
The defendant owned the mobile home.
7
that evening, no one was at home; he went to a nearby grocery
store parking lot and returned shortly thereafter to see a
vehicle in the driveway. He entered as Grebauski had instructed,
and found the victim upstairs in the bathroom. He started to
choke the victim, and she slipped and hit her head on the
radiator. Stewart then stabbed the victim in the heart and left
her on the floor with her head leaning up against the side of the
tub. While he was moving the victim's body, he inadvertently cut
her arm. He threw the knife and gloves in the Cape Cod canal,
then drove to his grandmother's house in Brockton, where he
telephoned Grebauski to tell him that "it's done." Grebauski
came to the grandmother's house, and he and Stewart discussed
plans for an alibi; Stewart planned to say that he had been with
Grebauski in Brockton when the victim was killed. Grebauski said
that he could not pay Stewart until the defendant returned from
Florida.
That same day, Berryman telephoned the defendant in Florida,
looking for Phinney. Berryman and Phinney had been working on a
vinyl siding job which was almost completed when Phinney suddenly
departed for a week-long vacation in Florida. When the client
contacted Berryman, angry that the job was not finished, Berryman
attempted to reach Phinney at the defendant's house in Florida.
Berryman asked Phinney when he would be returning to
Massachusetts to complete the job, and Phinney replied, "It
8
hasn't happened yet, but it's going to happen tonight. Listen to
your radio, watch the TV. She's going to die tonight."4
Edmond Carriere, III, the son of the victim and the
defendant,5 contacted McCraney and Kirby in Florida to tell them
that their mother had been killed; they flew to Massachusetts,
while the defendant drove back. At the victim's funeral service,
the defendant did not go inside the church, but remained outside,
sitting near his parked car. Kirby testified that the family did
not want the defendant at the funeral because they believed that
he had harmed the victim.
At some point shortly after the victim's death, Stewart and
Grebauski were playing pool in Grebauski's house when the
defendant telephoned to say he was coming over with the money.
When the defendant arrived, he said he was pleased that his wife
was dead ("the bitch was out of the way"), but was very angry
that his son had not been killed and that the body had not been
removed from the house so that it would not be discovered. After
an angry exchange during which the defendant told Grebauski he
4
At trial, David Phinney testified that he did not tell
Charles Berryman to watch for news of the victim's death until
after he had received notice the following day that she had been
killed; Phinney said he told Berryman to watch the television
news to get more information about the killing if he had not
heard the details.
5
Edmond Carriere, III, who was approximately twenty-two
years old at the time of the victim's death, lived with the
victim and his fourteen year old sister. For simplicity, we
refer to Edmond by his first name.
9
would not pay all of the agreed amount, the defendant and
Grebauski resolved their differences and the defendant threw
$10,000, in a stack of bills bound in an elastic band, onto the
pool table. When the defendant left, Grebauski and Stewart had a
heated discussion about the amount Stewart would be paid.
Stewart had believed that the full amount offered by the
defendant was $5,000, not $10,000. Eventually, Stewart agreed to
accept $4,500 for the killing, representing the $5,000 Grebauski
had discussed, minus a $500 deduction for the cocaine debt.
A few months after the victim was killed, Berryman
encountered the defendant on the driveway at Phinney's house.
The defendant approached Berryman, put his arm around Berryman's
shoulder, and said, "Charlie, I hear you're doing a lot of
flapping." When Berryman inquired what the defendant meant by
this, he responded, "You know what I mean. You keep it up,
you're going to end up just like my wife."
Several years after the victim's death, in 1994, the
defendant encountered Edmond and Edmond's wife, Sharon Cope
Carriere, at a fair in the Onset section of Wareham. The
defendant approached them, but Edmond refused to speak to him,
claiming that the defendant was not his father. The defendant
then engaged in a loud and angry verbal confrontation with Cope
Carriere, saying, among other things, that Edmond had had a
sexual relationship with his mother and should have been killed
10
with her.
Discussion. 1. Standard of review. The defendant
challenges the introduction or exclusion of testimony to which
there was an objection at trial, as well as testimony which was
introduced without objection. Where the error was preserved, we
review for prejudicial error and consider "whether there is a
reasonable possibility that the error might have contributed to
the jury's verdict." Commonwealth v. Alphas, 430 Mass. 8, 23
(1999). The Commonwealth "bears the risk of doubt when any
exists as to the error being nonprejudicial." Id. Reversal is
not necessary if the error "did not influence the jury, or had
but very slight effect." Commonwealth v. Cruz, 445 Mass. 589,
591 (2005), quoting Commonwealth v. Flebotte, 417 Mass. 348, 353
(1994). Where the error was unpreserved, we review for a
substantial likelihood of a miscarriage of justice. Commonwealth
v. Wright, 411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014).
2. Admission of out-of-court statements. "Out-of-court
statements by joint 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. Burton,
450 Mass. 55, 63 (2007). See Commonwealth v. Bongarzone, 390
Mass. 326, 340 (1983). Such statements of coventurers are
considered to be reliable, and are deemed "equivalent to a
statement by the defendant." Commonwealth v. Stewart, 454 Mass.
11
527, 535 (2009), citing Commonwealth v. White, 370 Mass. 703, 708
(1976). Before statements by coventurers may be admitted, the
Commonwealth first must establish the existence of the joint
venture (and the defendant's involvement in it) by a
preponderance of the evidence, independent of the out-of-court
statements. Commonwealth v. Cruz, 430 Mass. 838, 844 (2000).
See Commonwealth v. White, supra at 709 n.7. If the judge is
satisfied that the Commonwealth has met this burden, the
statement may be admitted, and the jury are instructed that they
may consider the statements only if they find that a joint
venture existed independent of the statements, and that the
statements were made in furtherance of that venture. See, e.g.,
Commonwealth v. Bright, 463 Mass. 421, 427 (2012); Commonwealth
v. Burton, supra; Commonwealth v. Silanskas, 433 Mass. 678, 693
(2001); Commonwealth v. Cruz, supra at 844-846.
Here, numerous out-of-court statements made by Grebauski,
Stewart, and Phinney were introduced under the joint venture
exception to the hearsay rule, the majority through Stewart's
testimony. The defendant argues that the Commonwealth did not
establish the existence of a joint venture between the defendant
and Grebauski, Stewart, or Phinney, and therefore that many of
the out-of-court statements should not have been admitted. The
defendant argues also that, even if the evidence was sufficient
to establish a joint venture between himself, Grebauski, and
12
Stewart, Grebauski's statements should not have been admitted
because they were testimonial and introduced in violation of
Crawford v. Washington, 541 U.S. 36, 53-54 (2004).
Turning first to this later argument, the claim is
unavailing. A defendant's right under the Sixth Amendment to the
United States Constitution to confront the witnesses against him,
see Crawford v. Washington, supra, "does not bar the admission of
statements that a reasonable person in the position of the
declarant would not objectively foresee as being used in the
investigation or prosecution of a crime." Commonwealth v.
Burton, supra at 63-64, citing Commonwealth v. Gonsalves, 445
Mass. 1, 12-13 (2005), cert. denied, 548 U.S. 926 (2006). This
inquiry looks to the intent of the declarant and the specific
circumstances of the statement. See Commonwealth v. Gonsalves,
supra at 12. "Certainly, just after the murder, in the privacy of
[a residence], neither [coventurer] would have reasonably
foreseen [his] statements being used in the investigation or
prosecution of a crime." Commonwealth v. Burton, supra at 64.
"Many other jurisdictions have reached a similar conclusion,
holding in general that statements of joint venturers (or
coperpetrators or coconspirators) are the type of remarks that
the Crawford Court deemed nontestimonial." Id. See Crawford v.
Washington, supra at 56 ("statements in furtherance of a
conspiracy" are not testimonial).
13
a. Evidence of existence of joint venture. The defendant
challenges as improper hearsay testimony the introduction of
Stewart's description of statements Grebauski made to him
concerning the defendant's plan to kill his wife, particularly
that, on the night of the killing, Grebauski told Stewart that
the defendant had said during a telephone call from Florida that
"it had to be done that night" because the defendant's daughter
had to return to school. The defendant also contests testimony
by Stewart's friend Stephen Tracy describing what Stewart told
him about someone wanting Grebauski "to do his old lady" a few
weeks before the victim's death; Berryman's testimony regarding
the substance of the telephone call with Phinney in Florida on
the day of the stabbing; and State police Sergeant Paul White's
testimony that Phinney told him that he went to Florida in part
to provide an alibi for the defendant. The defendant filed a
motion in limine to exclude Tracy's testimony, and thereafter
objected when it was introduced at trial. Defense counsel
objected to portions of Stewart's and Berryman's trial testimony;
the defendant did not object to White's testimony.
The Commonwealth maintains that the evidence of joint
venture was stronger in this case than in Commonwealth v.
Stewart, supra at 534-536, in which the court concluded that
there was sufficient evidence of a joint venture between the
defendant, Grebauski, and Stewart, but insufficient evidence of
14
Phinney's involvement.
We conclude that the evidence in this case was more than
sufficient to permit the jury to find that the defendant entered
into a joint venture with Grebauski and Stewart to kill his wife.
Therefore, save for a few exceptions that we discuss infra, the
statements by Grebauski and Stewart were admissible as made in
furtherance of the joint venture to kill the defendant's wife.6
See Commonwealth v. Bright, supra at 426-427; Commonwealth v.
Stewart, supra. Moreover, the defendant's own statements made in
furtherance of the joint venture to kill his wife are not
hearsay, and were admitted properly. See Commonwealth v. Bright,
supra at 426 n.8, citing Commonwealth v. Marshall, 434 Mass. 358,
365-366 (2001).
6
Because the testimony concerning Phinney's knowledge of
the joint venture was scant, limited, and contradictory, however,
and, in any event, no testimony was introduced to establish that
Phinney shared the intent to kill the victim, the evidence was
insufficient to establish a joint venture between the defendant
and Phinney, or between Phinney and Grebauski or Stewart.
Therefore, Berryman's testimony concerning Phinney's statement
over the telephone, "It hasn't happened yet, but it's going to
happen tonight. Listen to your radio, watch the TV. She's going
to die tonight," should not have been admitted. The objected-to
admission of this evidence, however, did not result in
prejudicial error. The statement was cumulative of substantial
other evidence of the defendant's plan to kill the victim on
January 3, and also was cumulative of other evidence that Phinney
unexpectedly traveled to Florida with his family a few days
previously, inferably in part to provide an alibi for the
defendant. Moreover, at trial, Phinney denied having made the
statement, and said that he had told Berryman after being
notified of the victim's death to watch the news for further
details if Berryman did not already know them. See note 4,
supra.
15
b. Scope of joint venture. We turn to consideration of
particular statements that the defendant contends, even if we
conclude that there was sufficient evidence of a joint venture,
were beyond its scope. The defendant maintains that certain
statements were inadmissible because they were made before the
joint venture was formed, or after it ended. See Commonwealth v.
Andrews, 403 Mass. 441, 452 (1988) (statements of joint venturer
not admissible after joint venture has ended). The inquiry to
determine if a statement is made during the pendency of the joint
venture, however, "focuses not on whether the crime has been
completed, but on whether a joint venture was continuing."
Commonwealth v. Stewart, supra at 537, citing Commonwealth v.
Braley, 449 Mass. 316, 322 (2007). Statements made prior to the
formation of a joint venture may be admissible if they were made
in furtherance of a joint venture that formed thereafter. See
Commonwealth v. McLaughlin, 431 Mass. 241, 248 (2000) ("Matters
surrounding the history of the conspiracy, including statements
of coconspirators, may be admissible even if they predate the
conspiracy"). Statements made in an effort to conceal a crime,
made after the crime has been completed, may be admissible under
the joint venture exception because the joint venture is then
ongoing, with a purpose to ensure that the joint venture itself
remains concealed. See Commonwealth v. Braley, supra at 322;
Commonwealth v. Anderson, 445 Mass. 195, 211 (2005), quoting
16
Commonwealth v. Colon-Cruz, 408 Mass. 533, 543 (1990).
The defendant challenges Stewart's testimony about
Grebauski's initial $5,000 offer, and Tracy's statement that
Stewart said Grebauski had someone who wanted Grebauski to "do
his old lady" as having been made before the joint venture was
formed. The challenged statements, however, were probative of
the defendant's intent to kill his wife and of the defendant's,
Stewart's, and Grebauski's actions in furtherance of that intent
several months later. The judge did not abuse his discretion in
determining that these statements concerning the formation of the
joint venture were not "too remote to be relevant." See
Commonwealth v. McLaughlin, supra; Commonwealth v. Rankins, 429
Mass. 470, 474 (1999).
The defendant also challenges Stewart's testimony regarding
the theft of two truckloads of lumber, in which he, the
defendant, and Grebauski were involved, as being outside the
scope of the joint venture to kill the victim. The testimony was
introduced to support a finding that the three would have been
involved in a subsequent joint venture to perpetrate the killing.
We agree that this testimony should not have been admitted on
this ground. The lumber theft took place in 1977, several years
before the defendant told his friends and acquaintances that he
was seeking someone to kill his wife, and did not form any part
of the later joint venture to perpetrate the killing. The
17
testimony about another criminal enterprise in which the
defendant was involved thus was not relevant to any issue in the
case, and served only to suggest that the defendant was likely to
engage in criminal activity. Because the Commonwealth contends
in its brief that the testimony was also admissible to show
motive and intent, we reserve for later discussion, see part 4,
infra, our consideration whether the admission of this
unobjected-to testimony was error resulting in a substantial
likelihood of a miscarriage of justice.
3. Propensity evidence. The defendant asserts that certain
of his statements and testimony concerning his conduct after his
wife's death should not have been admitted because the evidence
was more prejudicial than probative and was introduced merely to
paint a negative portrait of his character. We consider each
challenged statement in turn.
a. Statements that defendant wanted his son killed. The
defendant asserts error in the admission of testimony that, in
addition to his wife, the defendant sought to have his son
killed. This evidence included testimony by Stewart that when
Grebauski initially made the $5,000 offer to Stewart to kill the
defendant's wife, Grebauski said that the defendant also wanted
his son killed, but Stewart refused to have anything to do with
the son or with moving the wife's body. The evidence also
included testimony by Stewart that, at Grebauski's house after
18
the stabbing, the defendant was reported to have been angry that
his son had not been killed; and testimony by the defendant's
daughter-in-law that, in 1994, she and the defendant's son
encountered the defendant at a fair in Onset, where the defendant
told the son that he should have been killed just like his
mother. The Commonwealth sought to introduce this evidence under
the joint venture exception, maintaining that a plan to kill the
defendant's son was part of the joint venture between Stewart,
Grebauski, and the defendant to kill his wife. In its brief, the
Commonwealth asserts also that the evidence is relevant to the
defendant's motive to kill his wife. The defendant did not
object to the admission of most of this testimony at trial, but
did object to certain statements.
We conclude that the evidence was not sufficient to support
the existence of a joint venture to kill the defendant's son.
The only evidence of the defendant's solicitation of participants
in a joint venture to kill his son, or of others' possible
agreement to participate in such a venture, was introduced
through Stewart. Stewart testified that, when Grebauski
initially had asked him about killing the defendant's wife,
Stewart told Grebauski that he refused to have anything to do
with killing the son or moving the wife's body. The plan between
Grebauski and Stewart proceeded with the killing of the
defendant's wife. Stewart also testified that he "assumed" that
19
the conversation about the son meant that the defendant and
Grebauski had discussed the matter previously. Stewart further
testified that, after the killing, Grebauski said the defendant
was angry that the son had not been killed and the wife's body
had not been moved. Because Stewart explicitly refused to
participate in any plan to kill the son (which apparently went by
the wayside upon Stewart's refusal), Stewart was not a member of
a joint venture to kill the son, and his statements about any
such venture, if one existed, do not fall under the joint venture
exception to the hearsay rule.
Nor was there sufficient evidence independently to support
the existence of a joint venture to kill the defendant's son.
The only evidence of such a joint venture was the hearsay
statements by Stewart. The statements by the defendant at the
fair in Onset, years after the killing, that his son should have
been killed like the defendant's wife, do not indicate anything
about the defendant's involvement in a joint venture years
earlier that might have been formed with an intent to kill the
son.
The Commonwealth asserts also that the defendant's hostility
toward his son is probative of the defendant's hostility toward
the victim. Evidence of a defendant's hostility towards his
spouse may be admissible to show a defendant's motive to kill the
spouse. See Commonwealth v. Dung Van Tran, 463 Mass. 8, 15
20
(2012). Here, however, evidence of the defendant's hostility
towards his son does not render the desired inference of the
defendant's hostility toward the victim and intent to kill her
more probable than it would have been absent such evidence
without asking the jury to make impermissible inferences
concerning the defendant's character. See Commonwealth v.
Fayerweather, 406 Mass. 78, 83 (1989). The defendant's motive to
kill his wife is unrelated to any motive he may have had to kill
his son. The two crimes were separate and distinct. The
evidence of the defendant's motive to kill his wife hinged on her
refusing to give him a divorce or to accept money to "just go
away," and the defendant's belief that his wife would take
everything he owned in a divorce. There was no such motive for
the defendant to want to kill his son. Furthermore, statements
made years after the victim's death were not, as the Commonwealth
argues, "part and parcel" of the plan to kill the defendant's
wife. We agree that the evidence that the defendant said he
wanted his son killed was more prejudicial than probative.
Moreover, the evidence was not crucial to the Commonwealth's
case. Although the evidence of the defendant throwing $10,000 on
the pool table, and his argument with Grebauski about whether the
whole amount should be paid, was part of the course of the joint
venture, the argument also involved the defendant's expressed
anger over the manner in which the victim had been killed, and
21
the fact that her body had not been removed from the house as he
had told Grebauski he wanted done. Likewise, Stewart's argument
with Grebauski over the $5,000 he believed had been offered for
the stabbing, and the amount of $10,000 that the defendant had
discussed with Grebauski, did not involve the defendant's son.
Thus, the Commonwealth could have presented its case effectively
without statements about a hypothetical crime that never
occurred.
Nonetheless, given the extensive, properly admitted
testimony about the defendant's statements that he wanted his
wife killed, and his efforts to hire someone to do so; his trip
to Florida and his statements while in Florida; and his actions
following the victim's death, the admission of the testimony
concerning the defendant's statements about his son was unlikely
to have influenced the jury's verdict. See Commonwealth v.
Ortiz, 435 Mass. 569, 578-579 (2002).
b. Evidence of defendant's hostility toward victim. The
defendant contends also that other testimony, both objected to
and not objected to at trial, was unduly prejudicial and
introduced to attack his character by portraying him as what the
defendant characterizes as an "evil" man who did not like his
family (a "cold monster or devil . . . who cared so little about
his wife and children"). The challenged testimony includes the
statement by the defendant's daughter McCraney that the defendant
22
said her mother was a "whore" who was engaging in sex with
"everyone on Cape Cod"; that while McCraney and the defendant's
younger daughter flew back from Florida upon being told of the
victim's death, the defendant instead chose to drive back; and
that the defendant did not attend his wife's funeral. The
defendant also challenges the admission of statements by Glover
Grebauski, Grebauski's then girl friend, that, approximately one
month before the stabbing, the defendant had asked if Grebauski
"knew anyone big, big and black that would go in there and do
things to his wife that she would never forget." The
Commonwealth maintains that this evidence was admitted properly
to show the defendant's state of mind and intent toward the
victim, and that the judge's instruction on prior bad acts was
sufficient to cure any prejudice.
Evidence of a defendant's adversarial or hostile
relationship with a spouse may be admissible to show a
defendant's motive to kill the spouse. See, e.g., Commonwealth
v. Dung Van Tran, 463 Mass. 8, 15 (2012) (evidence that defendant
was abusive to estranged wife and children and had threatened to
kill them prior to starting fire in wife's house was admissible
because it "tended to show the defendant's long-standing and
persistent anger and hostility toward" his family and thus was
relevant to establish motive and intent); Commonwealth v. Mendes,
441 Mass. 459, 464 (2004) (defendant's use of cocaine and
23
association with prostitutes admissible to show motive to kill
wife, because it supported inference that defendant would seek
money from wife's inheritance to support these habits);
Commonwealth v. Hunter, 416 Mass. 831, 837 (1994), S.C., 427
Mass. 651 (1998) (out-of-court statements concerning witness's
conversation with victim admissible to show hostile relationship
between defendant and victim, in order to establish defendant's
state of mind and motive to kill victim); Commonwealth v. Gil,
393 Mass. 204, 215 (1984) (evidence of hostile relationship
between defendant and spouse may be admissible as relevant to
defendant's motive to kill spouse).
Although the derogatory statements about the defendant's
wife were prejudicial to the defendant, they were not unfairly
prejudicial. The defendant's intent, and his participation in
the planning of the killing that was carried out by Stewart and
Grebauski, were key issues in the case, and the statements were
clearly probative on those issues. See Commonwealth v. Carey,
463 Mass. 378, 387-388 (2012). The statement concerning "someone
big, big and black," who would do things his wife would never
forget, is similarly relevant to the defendant's state of mind
and his hostility toward the victim. Although, as the defendant
emphasizes, the statement contained both racial and sexual
overtones, it was not of such an unduly inflammatory nature as to
require a conclusion that the judge abused his discretion in
24
allowing its admission, where its probative value concerning the
defendant's state of mind was strong. See Commonwealth v. Olsen,
452 Mass. 284, 294 (2008) (that evidence on material matter is
"gruesome" or "inflammatory" does not necessarily render it
inadmissible). There was also no error in the judge's decision
to permit the introduction of evidence that the defendant drove
rather than flew home after being informed of his wife's death,
and that he did not attend the victim's funeral. Evidence of a
defendant's behavior after a victim's death may be admissible
where it is probative of the defendant's mental state at the time
of the killing. See Commonwealth v. Mendes, supra at 466-467;
Commonwealth v. Cardarelli, 433 Mass. 427, 434 (2001).
4. Prior bad acts. Stewart testified that, approximately
two years before the killing, he and Grebauski stole two
truckloads of lumber from a lumberyard in Wareham, at the behest
of the defendant, with Stewart acting as the driver, and that
Grebauski paid him $2,500 for the job. In addition to his
argument that testimony concerning the theft of the two
truckloads of lumber was beyond the scope of the joint venture,
see part 2, supra, the defendant argues that the testimony was
not relevant to any issue in the case, and was introduced
impermissibly only to attack his character.
Evidence of prior bad acts "is not admissible to show a
defendant's bad character or propensity to commit the charged
25
crime." Commonwealth v. Dwyer, 448 Mass. 122, 128 (2006). It
may, however, "be admissible if relevant for other purposes such
as 'common scheme, pattern of operation, . . . identity, intent
or motive.'" Id., quoting Commonwealth v. Marshall, 434 Mass.
358, 366 (2001). See Commonwealth v. Beneche, 458 Mass. 61, 80
(2010) (evidence of misconduct or prior bad acts may be
admissible to show defendant's motive, intent, or state of mind).
Even if such evidence is relevant for other purposes, its
probative value must not be substantially outweighed by its
prejudicial effect. See Commonwealth v. Sylvia, 456 Mass.
182, 192 (2010); Mass. G. Evid. § 403 (2014).
We conclude that, in addition to not supporting the
formation of a later joint venture to kill the defendant's wife,
the testimony concerning the lumber theft also should not have
been admitted to show motive or intent. The lumber theft was too
remote in time to make the formation of a joint venture between
the defendant, Stewart, and Grebauski to kill the victim more
likely, and bore little, if any, probative value on a motive to
kill the victim. It served therefore merely to paint the
defendant as someone prone to criminal activity.
Nonetheless, there was no substantial likelihood of a
miscarriage of justice in the erroneous admission of this
evidence. In the context of the other evidence at trial
concerning the brutal killing and the victim's efforts to defend
26
herself, the theft of materials from a lumber yard was a
relatively minor offense. Furthermore, Stewart testified that
Grebauski, who was "into everything," and not the defendant, paid
him to be a driver in the lumber yard theft. Moreover, defense
counsel made use of the lumber theft evidence as part of his
defense strategy. In both opening statement and closing
argument, defense counsel argued that Grebauski, not Stewart,
killed the victim, and that the lumber theft gave Grebauski an
independent motive to want the victim dead, because both the
victim and the defendant's son Edmond were planning to testify
against Grebauski at his upcoming trial on charges stemming from
the lumber theft.7
5. Exclusion of statement by deceased joint venturer. The
defendant argues that his right to due process was violated when
the judge denied his motion to admit, as a statement against
penal interest, testimony from David Mello that, while he and his
friend Grebauski were driving past the victim's house at some
point within a month of the stabbing, Grebauski said, "See that
white house there? I offed the bitch. She was getting to be too
much trouble and I killed her. I had to wait until her daughter
went to Florida with her father before I could kill her."
A defendant has a constitutional right to present a defense,
7
Testimony suggested that the defendant was estranged from
Edmond in part because of Edmond's plan to testify against
Grebauski.
27
and to offer evidence that another person committed the crime.
See Commonwealth v. Galloway, 404 Mass. 204, 208-209 (1989);
Commonwealth v. Jewett, 392 Mass. 558, 562 (1984). An out-of-
court statement "is admissible under the penal interest exception
if (1) the declarant's testimony is unavailable; (2) the
statement so far tends to subject the declarant to criminal
liability that a reasonable person in his position would not have
made the statement unless he believed it to be true; and (3) the
statement, if offered to exculpate the accused, is corroborated
by circumstances clearly indicating its trustworthiness."
Commonwealth v. Charles, 428 Mass. 672, 677 (1999), citing
Commonwealth v. Drew, 397 Mass. 65, 73 (1986). A judge
determining whether to admit such a statement "should not base
his determination on an assessment of the proffered witness's
credibility," but rather should consider several factors,
including the relationship between the declarant and the witness,
the reliability and character of the declarant, and "the
credibility of the declarant and the credibility and probativity
of his statement" to assess whether "there is some reasonable
likelihood that the statement could be true" given the other
evidence. Commonwealth v. Drew, supra at 75-76 (citation
omitted). Where the question of corroboration of the declarant's
credibility or trustworthiness is a close one, a judge should err
in favor of allowing the statement to be admitted. See
28
Commonwealth v. Tague, 434 Mass. 510, 516-517 (2001), cert.
denied, 534 U.S. 1146 (2002) (judges should favor admission of
statements against penal interest and leave assessments of
credibility and weight to jury).
The judge denied the motion to admit Mello's testimony on
the ground that Grebauski's statement did not meet the third
prong of the requirements for a statement against penal interest,
that the statement be corroborated by circumstances clearly
indicating its trustworthiness. See Commonwealth v. Charles,
supra. The judge noted that, in addition to being Mello's
cocaine supplier, Grebauski had engaged in a number of criminal
ventures with Mello, including selling drugs, stealing, and
automobile theft. He concluded that there was no corroborating
evidence, and that nothing in the circumstances indicated the
proffered testimony was trustworthy. Given a defendant's
constitutional right to present exculpatory evidence, and that,
in considering a statement against penal interest, "[t]he jury,
rather than the judge, should evaluate the credibility of the
witness," Commonwealth v. Drew, supra at 76, Mello's proffered
testimony should have been admitted. See Commonwealth v. Tague,
supra.
There was no prejudice, however, in the decision not to
leave the question of Mello's or Grebauski's credibility to the
jury. Grebauski's statement that he "offed" the victim was not
29
exculpatory and did nothing to undermine the Commonwealth's
theory that Grebauski participated in the killing at the
defendant's request, while the defendant was the mastermind.
Whether Grebauski killed the victim himself, or hired Stewart to
do so, did not exculpate the defendant; under either theory of
the crime, the defendant asked Grebauski to kill the victim, and
paid him for having done so. Given the other evidence of
Grebauski's involvement, the statement would have "had but very
slight effect" on the jury. Commonwealth v. Flebotte, 417 Mass.
348, 353 (1994), quoting Commonwealth v. Peruzzi, 15 Mass. App.
Ct. 437, 445 (1983).
6. Prosecutor's closing argument. The defendant contends
that a new trial is required based on two improper aspects of the
prosecutor's closing argument. He maintains first that the
prosecutor misstated the law and impermissibly shifted the burden
of proof by several of his remarks. The defendant maintains
further that certain of the prosecutor's comments were highly
inflammatory and not based on the evidence, but rather were
inappropriate efforts to attack the defendant's character and to
portray him as a "mastermind," a "puppet master," and the
"architect of a murder for hire" who wished to "envelop" himself
in "a cloak of darkness" and a "veil of secrecy."
Prosecutors may not "misstate the evidence or refer to facts
not in evidence" or "play . . . on the jury's sympathy or
30
emotions, or comment on the consequences of a verdict."
Commonwealth v. Kozec, 399 Mass. 514, 516-517 (1987). They may,
however, argue "forcefully for a conviction based on the evidence
and on inferences that may reasonably be drawn from the
evidence." Id. at 516. "Remarks made during closing arguments
are considered in the context of the entire argument, and in
light of the judge's instructions to the jury and the evidence at
trial." Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 231
(1992). See Commonwealth v. Francis, 450 Mass. 132, 140 (2007).
The absence of an objection at trial may be viewed as "some
indication that the tone [and] manner . . . of the now challenged
aspects of the prosecutor's argument were not unfairly
prejudicial." Commonwealth v. Mello, 420 Mass. 375, 380 (l995),
quoting Commonwealth v. Toro, 395 Mass. 354, 360 (1985).
"[I]nstructions may mitigate any prejudice in the final
argument." Commonwealth v. Kozec, supra at 517.
a. Statements concerning Commonwealth's burden. As he did
at trial, the defendant challenges certain of the prosecutor's
statements that the defendant maintains were misstatements of law
that shifted the burden of proof away from the Commonwealth, or
that would have resulted in juror confusion as to the standard of
proof necessary for a conviction. He points particularly to the
prosecutor's comment that it was the jury's duty to "determine
what happened or what didn't happen," and "to determine what
31
version [of events] is the correct version. What is it that
happened?" He also challenges the prosecutor's statement that
"[t]he term 'verdict' comes from the Latin 'veritas,' truth; and
'dicta,' to speak. Speak the truth. Thirty-two years is a long
time; and now it's time for you, jurors, to speak the truth."
Following closing arguments, the defendant sought a curative
instruction as to these statements. He argued that telling the
jury that their job is to decide "which version is correct . . .
shifts the burden," and, "They're not looking for the truth here.
They're looking to see whether the Commonwealth has proved their
case [beyond a reasonable doubt]." The judge declined to give
such an instruction. In his final charge, however, the judge
instructed:
"[Y]our function as the jury is to determine the facts
of this case. You are the sole and exclusive judges of the
facts. You alone will determine, What evidence do I accept?
How important any evidence is that you do accept. And what
conclusions you can draw from all of the believable evidence
in this case. After that, you must apply the law as I'm
going to state it to you to the facts as you have determined
them to be in order to decide whether the Commonwealth has,
as it must, proven this particular Defendant guilty of the
offense known as murder beyond a reasonable doubt."
"It is improper for a prosecutor to equate a guilty verdict
with justice." Commonwealth v. Francis, supra at 140. See
Commonwealth v. Degro, 432 Mass. 319, 328-329 (2000) (request to
jury to "do your job" and, implicitly, to find defendant guilty,
was not permissible argument). Even assuming that certain of the
32
prosecutor's statements could be seen as implicitly urging the
jury to do their job and find the defendant guilty, the majority
of the prosecutor's statements that the defendant characterizes
as burden-shifting did not suggest that the Commonwealth's burden
was less than proof beyond a reasonable doubt, or that the jury
could do their duty only by reaching a guilty verdict. Indeed,
early in his argument the prosecutor noted that the defendant's
counsel had misspoken at one point and suggested that the burden
of proof rested on defense counsel; the prosecutor then correctly
stated:
"But many times, he also said the burden is on the
Commonwealth. And folks, make no mistake about that. That
is absolutely 100 percent true. The burden is on the
government here to prove this case to you beyond a
reasonable doubt."
The prosecutor's statement regarding the jury's duty to determine
what happened, and to seek the truth, were not improper. See
Commonwealth v. Lyons, 426 Mass. 466, 471-472 (1998) (prosecutor
may urge jury to "do [their] duties as jurors to return a just
verdict"). It is appropriate for counsel to "impress upon the
jury their duty to act with . . . impartiality." Commonwealth v.
LaCorte, 373 Mass. 700, 707 (1977).
A few of the prosecutor's comments were more questionable.
The remark that the jury had to determine which of two stories
was the true version of events did not, standing alone, inform
the jury that their duty was to decide whether the Commonwealth
33
had proven the defendant's guilt beyond a reasonable doubt,
rather than to pick between two scenarios proffered by the
attorneys.8 Viewed in the context of the prosecutor's entire
closing argument, however, see Commonwealth v. Lyons, supra,
there was no prejudicial error. See Commonwealth v. LaCorte,
supra (prosecutor's remark that jury were courageous and that he
8
Although the defendant made no mention of this statement,
we note that, toward the end of his closing, having summarized
the evidence and immediately after his statement that thirty-two
years is a long time, the prosecutor said, "Edmond Carriere, Jr.
is guilty of murder in the first degree under the theory of
deliberate premeditation; and he's guilty of murder in the first
degree by extreme atrocity or cruelty." A prosecutor may not
"interject his personal belief in the defendant's guilt" into his
closing argument. See Commonwealth v. Young, 461 Mass. 198, 206
(2012), citing Commonwealth v. Good, 409 Mass. 612, 623 (1991).
In the context of the surrounding statements, however, the jury
reasonably could have understood this statement as the prosecutor
arguing permissibly that they should find the defendant guilty
based on the evidence. See Commonwealth v. Mamay, 407 Mass. 412,
424-425 (1990). Cf. Commonwealth v. Santiago, 425 Mass. 491, 500
(1997), quoting Commonwealth v. Bradshaw, 385 Mass. 244, 277
(1982) (jury "could be expected to take both arguments with a
grain of salt" and would be able to sort out excessive claims
made by prosecutor).
In any event, even if the statement were improper, it
resulted in no substantial likelihood of a miscarriage of
justice. At the beginning of his closing, the prosecutor himself
said that the jury must find the facts and that their collective
memories alone would determine what the facts were, not the
attorneys' views of the evidence. Later, before summarizing the
evidence, he argued properly, "I'm going to suggest to you,
ladies and gentlemen, that you will be convinced beyond a
reasonable doubt." In addition, the closing was followed by the
judge's forceful instructions on the attorneys' arguments being
merely their view of the evidence, and his instructions on the
Commonwealth's burden of proof and the jury's duty to determine
the facts and how much, if any, of the witnesses' testimony they
believed.
34
believed they would return truthful verdict not improper).
Immediately before and after making this statement, the
prosecutor informed the jury correctly that the Commonwealth had
to prove its case beyond a reasonable doubt, and that it was
their exclusive province to determine what the facts were. The
prosecutor's closing argument was followed by the judge's
detailed and proper instructions that explained the
Commonwealth's burden to prove the defendant's guilt beyond a
reasonable doubt; the instructions also emphasized that opening
statements and closing arguments are not evidence. See
Commonwealth v. Francis, supra at 140-141 (prosecutor's statement
that "justice delayed is justice denied" was improper, but error
did not create substantial likelihood of miscarriage of justice
because jury knew that thirty years had passed since killing
occurred and argument was followed by appropriate jury
instructions); Commonwealth v. Viriyahiranpaiboon, supra at 232,
and cases cited (where prosecutor made improper burden-shifting
comments in closing, defendant must show that effect on jury was
sufficiently prejudicial to merit reversal).
b. Inflammatory remarks. "A prosecutor must limit comment
in closing statement to the evidence and fair inferences that can
be drawn from the evidence." Commonwealth v. Pearce, 427 Mass.
642, 646 (1998), quoting Commonwealth v. Kelly, 417 Mass. 266,
270 (1994). Nonetheless, a prosecutor may argue zealously in
35
support of inferences favorable to the Commonwealth's case that
reasonably may be drawn from the evidence. See Commonwealth v.
Johnson, 429 Mass. 745, 748-749 (1999), quoting Commonwealth v.
Sanchez, 405 Mass. 369, 376 (1989) ("to the degree the recitation
of the evidence was inflammatory, that was inherent in the
odious . . . nature of the crime[] committed"). Although
forceful, the prosecutor's characterization of the defendant
seems to have been based properly on reasonable inferences that
could have been drawn from the evidence. The suggestion that the
defendant was a "mastermind" and the "architect of a murder for
hire" was grounded in the evidence of months of planning by the
defendant to arrange his wife's killing in Massachusetts while he
was with friends and relatives in Florida; the characterization
of the defendant as a "puppet master," while perhaps hyperbolic,
also rested on this evidence. See Commonwealth v. Lyons, supra
at 472-473, and cases cited ("The prosecutor's remarks were
characteristic of 'enthusiastic rhetoric, strong advocacy, and
excusable hyperbole,' and did not cross the line between fair and
improper argument").
Moreover, even if certain of the remarks might have been
better avoided, there was no error giving rise to a substantial
likelihood of a miscarriage of justice. Given the properly
admitted evidence, the comments that the defendant wanted someone
else to "do the dirty work" so that he could have an alibi, or
36
that he "wishe[d] to envelop" himself "in a cloak of darkness, in
a shroud of secrecy," did not step over the line of zealous
advocacy. Furthermore, during his final charge immediately after
the prosecutor's closing, the judge instructed that closing
arguments are not evidence, but "merely an opportunity for [the
attorneys] to sum up from their perspective what they felt the
evidence might suggest or mean to you." See Commonwealth v.
Francis, supra at 140-141; Commonwealth v. Kozec, supra at 517
("instructions may mitigate any prejudice in the final
argument").
6. Review pursuant to G. L. c. 278, § 33E. Having reviewed
the entire record pursuant to G. L. c. 278, § 33E, we discern no
reason to reduce the conviction of murder in the first degree to
a lesser degree of guilt or to order a new trial.
Judgment affirmed.