Commonwealth v. Hernandez

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SJC-11574

COMMONWEALTH vs. ARIEL HERNANDEZ.

Middlesex. October 9, 2015. - December 29, 2015.

Present: Gants, C.J., Spina, Botsford, Lenk, & Hines, JJ.

Homicide. Robbery. Armed Home Invasion. Home Invasion.
Firearms. Felony-Murder Rule. Evidence, Firearm.
Constitutional Law, Search and seizure, Probable cause.
Probable Cause. Search and Seizure, Motor vehicle,
Probable cause, Inevitable discovery. Practice, Criminal,
Capital case, Motion to suppress, Severance, Trial of
indictments together.

Indictments found and returned in the Superior Court
Department on December 10 and 22, 2009.

A pretrial motion to suppress evidence was heard by Thomas
P. Billings, J., and the cases were tried before him.

Dana Alan Curhan for the defendant.
Casey E. Silvia, Assistant District Attorney, for the
Commonwealth.

HINES, J. Based on an armed robbery that occurred during

the evening of October 22, 2009, and an armed home invasion and

double murder that occurred several hours later, a jury
 2

convicted on indictments charging the defendant with two counts

of armed robbery; two counts of murder in the first degree on

the theory of felony-murder (with armed home invasion and

attempted armed robbery as the underlying felonies); and one

count each of home invasion, unlawful possession of ammunition,

and possessing a firearm without a license. The defendant's

trial was joined with the trials of two codefendants, cousins

Karon and Jamal McDougal,1 on each of their indictments charging

two counts of felony murder and one count of home invasion, and

with Jamal's indictments for firearms offenses. Karon and Jamal

were acquitted of all charges. On appeal, the defendant argues

(1) error in the denial of his motion to suppress the firearm

used in the armed robbery and murders and (2) error in the

joinder of trial with his codefendants and in the joinder of the

armed robbery charges and charges relating to the home invasion.

We affirm the order denying the defendant's motion to suppress

as well as the defendant's convictions, and we discern no basis

to exercise our authority pursuant to G. L. c. 278, § 33E.

1. Motion to suppress. a. Background. Prior to trial,

the defendant filed a motion to suppress the firearm evidence,

claiming, on State and Federal constitutional grounds, that

police lacked probable cause for the warrantless search and the

1
Where the codefendants share a common surname, we refer to
each by their first name.
 3

search exceeded the bounds of a proper inventory search. The

motion judge, who was also the trial judge, held an evidentiary

hearing, at which one witness, Officer Christian Hanson of the

Lowell police department, testified. The judge denied the

motion and made the following findings of fact, "which we

supplement with evidence in the record that is uncontroverted

and that was implicitly credited by the motion judge," see

Commonwealth v. Melo, 472 Mass. 278, 286 (2015). On October 23,

2009, Officer Hanson reported for his shift at approximately 1

A.M. and learned of a reported armed robbery of two females that

had occurred at approximately 8:30 P.M. on October 22, 2009.

The robbery had taken place on Second Avenue in Lowell and a

handgun was used. The two female victims who reported the

robbery described the vehicle as a green Honda Civic sedan,

bearing a specified license plate number, and with a Dominican

Republic flag hanging from the rear view mirror. The

perpetrators were described generally as Hispanic males.

Officer Hanson was assigned to Lowell's eastern sector and

was driving alone and uniformed in a marked cruiser. At 1:33

A.M., Hanson learned through a police dispatch that an armed

home invasion had occurred at a home on Marshall Terrace, that a

handgun had been used, and that two occupants had been shot.

Hanson knew that the location of the invasion was approximately

fifty yards from the earlier armed robbery. At approximately
 4

2:20 A.M., a dispatch alerted him that the same vehicle was

involved in the earlier armed robbery and the home invasion and

noted the address of the vehicle's registered owner as Phillips

Street.2

Officer Hanson drove towards Phillips Street, looking for

the vehicle. Within minutes of the second dispatch, while

heading in a westerly direction on Broadway Street, he came up

behind a vehicle matching the exact description, including the

license plate number and the Dominican flag. Hanson followed

the vehicle as it turned left twice so that it was heading

parallel to Broadway in the opposite direction, away from

Phillips Street. He called for backup. Hanson saw the vehicle

fail to stop at a stop sign. Officer Hanson stopped the vehicle

at an intersection as two other cruisers arrived. The driver of

the vehicle pulled over at Officer Hanson's command. Hanson and

two other officers got out of their cruisers and approached the

vehicle with weapons drawn.

2
There was no evidence as to how the police obtained the
description of the vehicle used in the home invasion and, as
such, the motion judge properly did not include the description
or registered owner's address in his probable cause calculus.
See Commonwealth v. Cheek, 413 Mass. 492, 494-495 (1992) ("Where
the police rely on a police radio call to conduct an
investigatory stop, under both Federal and State law, the
Commonwealth must present evidence at the hearing on the motion
to suppress on the factual basis for the police radio call in
order to establish its indicia of reliability").
 5

Officer Hanson and one of the officers approached the

driver's side and Hanson ordered the occupants to raise their

hands and keep them in plain sight. The defendant, who was the

driver, was loud and belligerent and shouted, "What the fuck did

I do?" The defendant was "moving around" in the driver's seat

and then reached for the center console. At that point, the two

officers pulled the defendant to the ground outside the vehicle

and handcuffed him. The third officer did the same to Giovanni

Hill who was in the passenger's seat. The officers searched the

vehicle, and after finding no weapons or contraband in the

passenger's compartment, they opened the trunk and found a

handgun. Officer Hanson testified that they had searched the

trunk because they were looking for the firearm involved in the

earlier armed robbery.

Shortly thereafter, one of the robbery victims was brought

to the scene for a showup identification. She identified Hill

as one of the robbers. Specifically, Officer Hanson testified

that the victim said that Hill was standing "next to the man

that was holding the gun with the hood or a mask over his face"

during the robbery. The police arrested the defendant on

firearms charges and Hill for armed robbery.

The judge concluded that the search was justified under the

automobile exception to the warrant requirement because, quoting

Carroll v. United States, 267 U.S. 132, 162 (1925), there was
 6

enough evidence to "'warrant a man of reasonable caution in the

belief' . . . that the handgun would be in the vehicle, perhaps

in the trunk and out of sight." The judge reasoned that the six

hours that had passed between the robbery and the automobile

stop were not fatal where "it was reasonable to think that one

or both of the occupants at the time of the stop had probably

been using the vehicle at the time of the robbery," the

occupants of the vehicle "fit the very general description of

the robbers," and a handgun had been used in both the robbery

and the later home invasion. Moreover, the judge concluded that

the police had "ample probable cause" to search the entire

vehicle, including the trunk, after the showup identification,

at which Hill was identified as one of the robbers.

The defendant maintains on appeal that the firearm should

have been suppressed because the police lacked probable cause to

search the trunk and because the warrantless search was not

justified under the inevitable discovery doctrine.3

b. Discussion. "In reviewing a ruling on a motion to

suppress, we accept the judge's subsidiary findings of fact

absent clear error 'but conduct an independent review of his

ultimate findings and conclusions of law.'" Commonwealth v.

3
The defendant also argues that the search was not
justified on safety grounds or as a search incident to arrest,
but the Commonwealth does not argue on appeal that either theory
justifies the search, and the motion judge agreed with the
defendant on these grounds.
 7

Craan, 469 Mass. 24, 26 (2014), quoting Commonwealth v. Scott,

440 Mass. 642, 646 (2004). "The judge determines the weight and

credibility of the testimony." Commonwealth v. Woods, 466 Mass.

707, 717, cert. denied, 134 S. Ct. 2855 (2014), citing

Commonwealth v. Sinforoso, 434 Mass. 320, 321 (2001). We,

however, "make an independent determination of the correctness

of the judge's application of constitutional principles to the

facts as found." Woods, supra, quoting Commonwealth v. Mercado,

422 Mass. 367, 369 (1996).

"Warrantless searches are presumptively unreasonable, under

both the Fourth Amendment to the United States Constitution and

art. 14 of the Massachusetts Declaration of Rights, subject only

to 'a few specifically established and well-delineated

exceptions.'" Commonwealth v. Gouse, 461 Mass. 787, 792 (2012),

quoting Commonwealth v. Bostock, 450 Mass. 616, 624 (2008).

"Under the automobile exception to the warrant requirement, the

search of a motor vehicle is reasonable and permissible where

probable cause exists to support the search." Commonwealth v.

Johnson, 461 Mass. 44, 49 (2011). If the police lacked probable

cause under the automobile exception or otherwise performed an

illegal search, the inevitable discovery doctrine permits the

admission of evidence that ordinarily would be prohibited by the

exclusionary rule. See Commonwealth v. Gray, 465 Mass. 330,

345-346, cert. denied, 134 S. Ct. 628 (2013). The issue, then,
 8

is whether the police had probable cause to search the trunk

before the showup identification; and if not, whether the

Commonwealth met its burden to prove that the firearm is

admissible under the inevitable discovery doctrine.

i. Automobile exception. A warrantless search of an

automobile is permissible "where the police have probable cause

to believe that a motor vehicle parked in a public place and

apparently capable of being moved contains contraband or

evidence of a crime." Gouse, 461 Mass. at 792, quoting Bostock,

450 Mass. at 624. "The existence of probable cause depends on

whether the facts and circumstances within the officer's

knowledge at the time of making the search or seizure were

sufficient to warrant a prudent man in believing that the

defendant had committed, or was committing, an offense."

Bostock, 450 Mass. at 624, quoting Commonwealth v. Miller, 366

Mass. 387, 391 (1974). If the police had probable cause to

search any part of the vehicle under the automobile exception,

the police were entitled to search "all containers, open or

closed, found within." Gouse, supra, quoting Commonwealth v.

Cast, 407 Mass. 891, 908 (1990).

Officer Hanson, acting on the reliable information before

him, had probable cause to search the trunk. Gouse, 461 Mass.

at 794, quoting Cast, 407 Mass. at 895 ("In dealing with

probable cause, . . . as the very name implies, we deal with
 9

probabilities. These are not technical; they are the factual

and practical considerations of everyday life on which

reasonable and prudent men, not legal technicians, act"). The

information supporting probable cause included the following:4

(1) a robbery involving a firearm occurred at 8:30 to 8:45 P.M.;

(2) the vehicle involved in the robbery was a green Honda Civic

sedan, bearing a specified license plate number, and with a

Dominican Republic flag hanging from the rear view mirror; (3)

the perpetrators were described as two Hispanic males; (4) an

armed home invasion, where two people were shot, occurred

approximately five hours after and approximately fifty yards

from the armed robbery; (5) a vehicle matching the exact

description of the vehicle used in the armed robbery was going

in the general vicinity of the two crimes approximately six

hours after the robbery; (6) the vehicle changed direction after

the police cruiser approached, turning 180 degrees from its

original direction; (7) the vehicle failed to stop at a stop

4
The information contained in the second dispatch, the
descriptions of the vehicle and "two Hispanic males" and the
address of the registered owner of the vehicle, was not
considered by the motion judge and, likewise, is not considered
in our determination of probable cause. The Commonwealth did
not offer the basis of knowledge for the source of the
information contained in that dispatch, and therefore, the
Commonwealth has not shown that the information is reliable.
See Commonwealth v. Lopes, 455 Mass. 147, 155-156 (2009)
(Commonwealth must show reliability of police broadcast through
"basis of knowledge of the source of the information . . . and
the underlying circumstances demonstrating that the source of
the information was credible or the information reliable").
 10

sign after the police cruiser approached; (8) the occupants of

the vehicle were two Hispanic-appearing males; (9) the driver of

the vehicle was belligerent and made furtive gestures; and (10)

no weapons or contraband were located inside the interior of the

vehicle. The sum of the information known to police formed a

sufficient basis on which to search the entire vehicle,

including the trunk, because the officers could have

appropriately concluded that the vehicle used in the armed

robbery, occurring hours prior in the same general proximity to

the location of the stop, contained evidence of that crime.

The defendant's argument against probable cause hinges on

the six-hour gap between the armed robbery and the stop, and the

lack of a specific description of the perpetrators. We disagree

that either factor is fatal. Although "[f]acts supporting

probable cause must be 'closely related to the time of the issue

of the warrant [so] as to justify a finding of probable cause at

that time,'" we conclude that the temporal component was

satisfied under these circumstances. See Commonwealth v.

Matias, 440 Mass. 787, 792 (2004), quoting Commonwealth v. Cruz,

430 Mass. 838, 843 (2000).

Our conclusion is guided by the nature of the crime and of

the evidence. "A nexus between the items to be seized and the

place to be searched need not be based on direct observation and

may be found in 'the type of crime, the nature of the missing
 11

items, the extent of the suspect's opportunity for concealment,

and normal inferences as to where a criminal would be likely to

hide stolen property.'" Commonwealth v. Burt, 393 Mass. 703,

715-716 (1985), quoting Commonwealth v. Cinelli, 389 Mass. 197,

213, cert. denied, 464 U.S. 860 (1983). Here, Officer Hanson

knew that a firearm was used in an armed robbery by occupants of

a vehicle that was stopped six hours after the crime occurred.

Although it is possible that the perpetrators of the robbery

could have hidden the firearm elsewhere in the time that passed,

it is a reasonable inference that the firearm, evidence not

easily disposed of, was hidden in the trunk. See Burt, supra at

716 ("because the hasty disposal of large amounts of coins could

have been risky to the alleged thieves, the inference that some

of the coins would be found in the defendants' residences and

vehicles was reasonable").

Further, it was not unreasonable to suspect that the

current occupants of the vehicle were using the vehicle six

hours earlier where there was no information that the vehicle

was a rental and the occupants matched the very general

description of the perpetrators. Cf. Commonwealth v. Jordan,

469 Mass. 134, 146 (2014) (police lacked probable cause where

vehicle with license plate number matching that involved in

shooting two days earlier known to be rented and officers did

not know identity of renter or terms of rental arrangement). In
 12

addition to providing a precise description of the vehicle, the

victims described the perpetrators as two males of Hispanic

descent, which narrowed the range of possible suspects and

corresponded with the description of the males in the vehicle

during the stop. See Commonwealth v. Mercado, 422 Mass. 367,

371 (1996) (general description of two Hispanic males narrowed

"range of possible suspects" for reasonable suspicion).

In addition to the evidence discussed above, the driver's

evasive movements after the marked cruiser approached -- failing

to stop at a stop sign and turning 180 degrees from his initial

direction -- may be considered. See Commonwealth v. Ortiz, 376

Mass. 349, 354 (1978) (evasive movements insufficient, but

relevant, for determining probable cause). Further supporting

our analysis is the defendant's belligerent behavior between the

stop and the search that heightened the officers' suspicions

when he reached towards the center console when instructed to

keep his hands up. See Commonwealth v. Va Meng Joe, 425 Mass.

99, 106 (1997), citing Commonwealth v. Alvarado, 420 Mass. 542,

551 (1995) (exiting vehicle at red light when approached by

police and "furtively reach[ing] into his pocket" are

"additional factor[s] that allows us to conclude that, at the

time of the search, the police officers had probable cause to

believe that the defendant had committed, or was committing, a

crime").
 13

ii. Inevitable discovery. Even if the officers acted

prematurely in opening the trunk, the firearm would still be

admissible so long as the Commonwealth proved by a preponderance

of the evidence that the firearm would have been inevitably

discovered. Commonwealth v. Balicki, 436 Mass. 1, 16 (2002).

Under the inevitable discovery doctrine, evidence may be

admissible as long as the Commonwealth can demonstrate that

discovery of the evidence by lawful means was certain as a

practical matter, "the officers did not act in bad faith to

accelerate the discovery of evidence, and the particular

constitutional violation is not so severe as to require

suppression." Commonwealth v. Sbordone, 424 Mass. 802, 810

(1997), citing Commonwealth v. O'Connor, 406 Mass. 112, 117-118

(1989). This is a "demanding test." Balicki, supra, quoting

Commonwealth v. Perrot, 407 Mass. 539, 548 (1990).

After the showup identification, the police had robust

evidence supporting probable cause. At that point, they had

direct evidence that an occupant of the vehicle was involved in

the armed robbery that occurred six hours before the stop.

Thus, the Commonwealth met its burden in this regard.

The defendant argues that the inevitable discovery doctrine

is not applicable where Hill had no connection to the vehicle

other than as a passenger, it was not certain that the police

would search the trunk after the identification, and the police
 14

acted in bad faith. The defendant's arguments are unavailing.

Hill's presence supports the inference that the firearm was

hidden in the vehicle. It was "certain as a practical matter"

after Hill was identified that the police would search the trunk

because evidence from the armed robbery was not in the passenger

compartment and the officers were still looking for the firearm.

Sbordone, 424 Mass. at 810. Lastly, the officers did not act in

bad faith where the defendant was not harmed by the potentially

premature search of the trunk. The bad faith component of the

inevitable discovery rule is designed to ensure that "the

Commonwealth's case is not aided (or the defendant's case

harmed) by the unlawful, premature discovery of the evidence."

O'Connor, 406 Mass. at 119. The firearm was properly admitted

where it would have been discovered during the course of the

stop and there is no allegation that the firearm played any role

in the victim's identification of Hill.5

The evidence supports the denial of the defendant's motion

to suppress.

5
The defendant does not dispute that the stop and showup
identification were both lawful. The identification properly
occurred during the stop. See Commonwealth v. Salerno, 356
Mass. 642, 646-647 (1970), quoting Ker v. California, 374 U.S.
23, 34 (1963) ("An expeditious collateral inquiry which might
result in the suspects' arrest or prompt release is not
unreasonable when done to meet 'the practical demands of
effective criminal investigation and law enforcement'").
 15

2. Trial. a. Background. As key witnesses at trial,

Commonwealth presented testimony from the two armed robbery

victims, Sophia Deno and Ashley Cardoso; from witnesses inside

Marshall Terrace during the home invasion and murders, Kyle

Delgado and Brian Staples; and from several cooperating

witnesses who were with the defendant during the evening of the

armed robbery and home invasion: Hill, Darien Doby, and Joshua

Silva. We recite the facts the jury could have found based on

the Commonwealth's case. Commonwealth v. Latimore, 378 Mass.

671, 676-677 (1979). Prior to the armed robbery, a vehicle

drove slowly by the victims, Deno and Cardoso, two times and

then parked around the corner from them. The vehicle was a

green Honda Civic with a Dominican flag hanging from the rear-

view mirror and owned by the defendant's sister. The vehicle

contained the defendant, Hill, Doby, and Tim Brown. The

defendant got out of the vehicle with Hill and removed a firearm

from the trunk. The defendant approached Deno and Cardoso and

asked them to give him their "stuff." When they did not

immediately agree, the defendant pointed a gun at Cardoso's arm

and took both victims' purses. During the encounter, Hill stood

five to ten feet away laughing.

The defendant was wearing a khaki or green colored

sweatshirt with a hood covering all of his face except his

mouth. Cardoso's statement to police was read in evidence, in
 16

which she said, "I could tell by his face and the tone of his

voice that he was Spanish," and described the defendant as five

feet, nine inches to five feet, ten inches tall, with a "little

kind of moustache" and maybe "a little bit of chin hair." Hill

was wearing a red and tan jacket.

After the robbery, the two reentered the vehicle; the

defendant sat in the driver's seat with the two purses and

firearm on his lap, and Hill entered the passenger side of the

vehicle. The group then drove to Simon Phanthai's house where

Phanthai, at the defendant's request, gave the defendant a black

sweatshirt to wear instead of his green hooded sweatshirt.

Phanthai joined the group, and after a brief separation,

Phanthai, the defendant, Hill, Brown, and Doby met at Brown's

house.

At Brown's house, the defendant went through the victims'

purses and retrieved eighty dollars. He told Hill to take one

of the victim's debit cards to a bank's automated teller machine

to try to withdraw money. After trying to withdraw money at two

banks, Hill returned unsuccessful.

At about 11:45 P.M., the two codefendants at trial, Jamal

and Karon, arrived at Brown's house. Either Jamal or Karon

asked the defendant if he wanted to be involved in a robbery.

The defendant agreed to join them and to bring his gun. Silva

drove his 1995 Toyota Camry to Brown's house to meet the group
 17

and agreed to be the driver for the robbery. The defendant,

Jamal, and Karon all changed into different clothes provided by

Brown. The defendant put on a Boston Red Sox sweatshirt with a

large "B" on it, Jamal put on a black sweatshirt with a hood,

and Karon put on sweatpants. Jamal obtained a gun from Brown.

The defendant, Jamal, Karon, and Silva left Brown's house.

Jamal instructed Silva where to drive. Silva remained in the

vehicle and watched the other three walk towards the residence

and through a garage.

The two murder victims, Luis Antonio Martinez Delgado,

known as "Tony," and Hector Delgado, lived at Marshall Terrace

with Brian Staples and Michael DelGreco. The Delgados sold

marijuana from their four-story house. All four residents, in

addition to the Delgados' nephew, Kyle Delgado, were at the home

during the crime. Kyle and Tony were on the fourth floor,

Hector and Staples were in their rooms on the third floor, and

DelGreco was on the couch on the second floor.

At or around 1 A.M., there was a loud bang, like a

"battering ram" on the door. Tony yelled to see who was there

and someone responded "Nicole." Tony went downstairs and told

Kyle to remain upstairs. Kyle was hiding during most of the

home invasion and did not see any intruders. Staples came down

from the third floor and saw two males, each with a gun. One

male was holding a gun to Tony's head and the second male
 18

started walking toward Staples with his gun drawn when Staples

came down the stairs. Staples testified that the male with Tony

was broad, wearing a black or gray jacket with a hood, and

"maybe a little bit taller" than Tony, who was five feet, eight

inches or five feet, nine inches tall. The male who approached

Staples was a "little shorter" with a "smaller frame" than the

male with Tony, was wearing a "reddish" jacket with an emblem

and a hood pulled down to his nose, had a "little goatee," and

had "dark skin, Spanish."6

The male with Tony asked, "Where is it?" Tony responded,

"I don't have anything," and Staples ran upstairs to his bedroom

to call 911. Kyle and Staples both heard gunshots while hiding.

When they emerged, they found Hector lying on his back in his

bedroom with a visible bullet hole in his stomach. Tony was

lying on his stomach at the top of the stairs leading to the

fourth floor with a visible bullet hole in his back.

Silva waited in his vehicle outside Marshall Terrace.

Karon returned three to four minutes after he had left the

vehicle and Jamal and the defendant returned to the vehicle

approximately five minutes after Karon. Jamal told the

defendant that he was a great shot and the defendant responded,

6
In an array containing the defendant's photograph, Staples
pointed to the defendant but said he was not able to positively
identify anyone. The defendant's photograph "looked similar in
bearded features," but Staples "couldn't be 100 percent
positive, since he felt the beard was a little bit longer."
 19

"I know once I seen them jump on you I started shooting." The

group returned to Brown's house. A surveillance system from an

automotive garage nearby Marshall Terrace showed Silva's Toyota

Camry automobile driving down Orford Street, which is parallel

to Marshall Terrace.

Back at Brown's house, the defendant and Jamal conversed

about the events that had occurred. The jury heard that Karon

tried to kick in the door, that somebody answered "Nicole" to a

person in Marshall Terrace, that Jamal was going to Boston to

hide, and that the defendant and Jamal would act like they did

not know each other if the police came.

The defendant, Hill, and Doby left Brown's apartment

together in the vehicle belonging to the defendant's sister.

Hill placed the defendant's gun in the trunk of the vehicle.

The defendant dropped off Doby and was headed to Hill's house

when he and Hill were stopped by police and subsequently

arrested.

Gunshot residue samples were taken from the defendant and

Hill after the arrest; the sample from the defendant tested

positive and the sample from Hill tested negative. A ballistics

expert from the State police opined that the firearm obtained

during the search of the trunk fired the cartridge casing and

projectiles recovered from Marshall Terrace and from the bodies

of Tony and Hector.
 20

In closing arguments, defense counsel for all three

defendants argued that other persons present at Brown's

apartment on the evening leading to the armed home invasion and

double murder were responsible. The defendant's counsel argued

that Silva and Brown were the perpetrators, not the defendant

and the McDougal codefendants. Karon's counsel named Brown,

Silva, and Hill as culpable parties. Jamal's counsel argued

that the four persons involved were Brown, Silva, Doby, and

Hill.

b. Joinder. The defendant argues that his right to due

process guaranteed by the Fifth Amendment to the United States

Constitution and as applied to the States by the Fourteenth

Amendment was violated by the joinder of his trial with the

McDougals and the joinder of his offenses. The defendant's

argument is unavailing.

i. Joinder of defendant and codefendants at trial. Prior

to trial, the defendant moved to sever his case from the cases

of Jamal and Karon, arguing that he, Jamal, and Karon would

present inconsistent defenses for a number of reasons. Defense

counsel renewed the motion several times during trial, and each

time, the motion was denied.7 As his primary contention on

7
The defendant argued that the defenses were inconsistent
because: (1) Jamal and Karon each moved to enter photographs of
individuals, including the defendant, holding firearms; (2)
statements made by Jamal after the homicide about details of the
 21

appeal, the defendant argues that he was prejudiced by Jamal and

Karon's trial strategy because Jamal and Karon, African-American

men, effectively "point[ed] the finger" at the defendant by

highlighting testimony that the perpetrators of the home

invasion were Hispanic. Jamal and Karon's counsel moved to

sever from the defendant on similar grounds, asserting that

Jamal and Karon "want these two intruders to be Spanish" and the

defendant's attorney "wants the two intruders to be black" or

"some other color but certainly not Spanish." The judge denied

the motions after reasoning that the defenses did not require

the jury to determine that one defendant or another was guilty,

noting that "[t]here are lots of black people and lots of

Hispanic people to go around."

It is presumed that individuals will be tried together when

criminal charges "arise out of the same criminal conduct."

Commonwealth v. Siny Van Tran, 460 Mass. 535, 542 (2011),

quoting Mass. R. Crim. P. 9 (b), 378 Mass. 859 (1979), and

citing Commonwealth v. Smith, 418 Mass. 120, 125 (1994). A

judge may sever trials if it appears that joinder "is not in the

best interests of justice," Mass. R. Crim. P. 9 (d), and should

murder would prejudice the defendant's case; (3) Jamal and
Karon's counsel highlighted the description of the home invasion
intruder as "sounding Hispanic"; (4) Jamal's counsel introduced
a statement allegedly made by the defendant while in jail naming
Jamal as the shooter; and (5) Jamal's counsel introduced
evidence that gunshot residue was found on the steering wheel of
the vehicle the defendant was driving.
 22

sever trials if: (1) the defenses are mutually antagonistic

where the "sole defense of each [is] the guilt of the other,"

Siny Van Tran, supra, quoting Commonwealth v. Stewart, 450 Mass.

25, 31 (2007); or (2) "the prejudice resulting from a joint

trial is so compelling that it prevents a defendant from

obtaining a fair trial." Siny Van Tran, supra, quoting

Commonwealth v. Moran, 387 Mass. 644, 658 (1982). "Nonetheless,

'even mutually antagonistic and irreconcilable defenses do not

require severance if there is sufficient other evidence of

guilt.'" Commonwealth v. Akara, 465 Mass. 245, 257 (2013),

quoting Commonwealth v. Vasquez, 462 Mass. 827, 838 (2012).

There was no abuse of discretion in the denial of the

motions to sever because the defenses at trial were not mutually

exclusive and joinder did not prevent the defendant from

obtaining a fair trial. Although the codefendants differed in

the descriptive characteristics they wanted the jury to remember

about the intruders, the defendant did not need the jury to

believe that Jamal or Karon were guilty in order to obtain an

acquittal. See Siny Van Tran, 460 Mass. at 542. Instead of

naming each other, the three codefendants all named other third

parties as the actual perpetrators.8 Counsel for each defendant

argued that the witnesses who testified for the Commonwealth in

8
The defenses also were consistent in that each asserted
inadequate police investigation under Commonwealth v. Bowden,
379 Mass. 472, 485-486 (1980).
 23

exchange for deals were lying to protect themselves and other

friends and all asserted that Brown and Silva were involved in

the murders instead of their clients.

The defendant also argues on appeal that joinder was

prejudicial where Jamal's counsel introduced a statement

allegedly made by the defendant while in jail, naming Jamal as

the shooter. The judge instructed the jury to disregard any

reference to the defendant as the declarant. The jury are

presumed to follow instructions. Commonwealth v. Andrade, 468

Mass. 543, 549 (2014), citing Commonwealth v. Gonzalez, 465

Mass. 672, 681 (2013). Moreover, any harm that the defendant

may have suffered by the admission of this evidence should be

viewed against the benefit he received as a result of the

joinder with Karon. Because the defendant's trial was joined

with Karon's, the jury did not hear a statement made at Brown's

house wherein the defendant asserted that he shot two people

inside Marshall Terrace. Although discussion of events before

and after the home invasion were admitted against all three

defendants, this statement was excluded because the theory of

adoptive admission was not satisfied where there was

insufficient evidence that Karon actually entered the home. The

judge noted that he would likely have admitted the statement had

Karon's trial been severed.
 24

Lastly, there was no error where considerable evidence

linked the defendant to the crime. See Akara, 465 Mass. at 257.

The firearm belonging to the defendant, which was located in the

trunk of the vehicle he was driving in the early morning hours

following the murder, fired the projectiles recovered from the

bodies of the victims. Gunshot residue was found on the

defendant's hands shortly after the murders. Even if the

defenses at trial were irreconcilable, denial of the motions to

sever would not require a new trial where there was

"considerable independent evidence" of the defendant's guilt.

Akara, supra, quoting Vasquez, supra at 838; id. at 838 n.10

("For purposes of severance, independent evidence is evidence

that is not offered by one defendant against another at their

joint trial").

ii. Joinder of charges. The defendant claims that the

trial for armed robbery should not have been joined with the

indictments stemming from the home invasion and murders. He

argues that joinder of the charges was prejudicial and improper

where the indictments were unrelated and the potential for

prejudice outweighed any governmental interest in a single

trial. Specifically, the defendant argues that, other than the

firearm, "no evidence relating to either set of charges . . .

could have been introduced in a trial of the other set of
 25

charges" and propensity to engage in criminal activity likely

contributed to convictions on both charges.

Joinder "shall" be allowed when a defendant is charged with

two or more related offenses unless the trial judge "determines

that joinder is not in the best interests of justice." Gray,

465 Mass. at 334-335, quoting Mass. R. Crim. P. 9. To succeed

on a claim of misjoinder, the defendant "bears the burden of

demonstrating that the offenses were unrelated, and that

prejudice from joinder was so compelling that it prevented him

from obtaining a fair trial." Commonwealth v. Pillai, 445 Mass.

175, 180 (2005), quoting Commonwealth v. Gaynor, 443 Mass. 245,

260 (2005). The trial judge's decision whether to join offenses

will not be reversed unless there has been a "clear abuse of

discretion." Pillai, supra, quoting Commonwealth v. Walker, 442

Mass. 185, 199 (2004).

"For purposes of joinder, offenses are related 'if they are

based on the same criminal conduct or episode or arise out of a

course of criminal conduct or series of criminal episodes

connected together or constituting parts of a single scheme or

plan.'" Pillai, 445 Mass. at 180, quoting Mass. R. Crim. P. 9

(a) (1). Factors that may be considered when determining

whether offenses are related include factual similarities,

closeness of time and space, and "whether evidence of the other
 26

offenses would be admissible in separate trials on each

offense." Pillai, supra.

The defendant failed to demonstrate that the offenses are

unrelated. The offenses were factually similar in that the

defendant used his firearm in an attempt to coerce the victims

of each incident to relinquish money and the crimes were close

in time and space, occurring within approximately fifty yards of

each other and within a time span of five hours.

Moreover, evidence of each offense would be admissible in

separate trials. Although evidence of other bad or criminal

acts are not admissible to show "bad character or propensity to

commit the crime charged," it may be admissible "for some other

probative purpose, including to show intent, motive, state of

mind, or some other relevant issue at trial." Commonwealth v.

Dung Van Tran, 463 Mass. 8, 14 (2012), quoting Commonwealth v.

Morgan, 460 Mass 277, 289 (2011).

In this case, evidence of the armed robbery, in which the

defendant obtained eighty dollars and was unsuccessful in

obtaining more money through the use of the victim's debit card,

was relevant to show the defendant's intent, motive, and state

of mind when participating in the home invasion. The evidence,

therefore, would have been admissible at trial on the home

invasion and murders. Dung Van Tran, supra.
 27

Similarly, evidence of the home invasion would have been

admissible at trial on the armed robbery. The "'prosecution

[is] entitled to present as full a picture as possible of the

events surrounding the incident itself,' as long as the

probative value of the evidence presented is not substantially

outweighed by any prejudice to the defendant." Commonwealth v.

Robidoux, 450 Mass. 144, 158 (2007), quoting Commonwealth v.

Marrero, 427 Mass. 65, 67 (1998). The defendant presented a

third-party culprit defense to the armed robbery, arguing that

there was insufficient evidence to convict him where the only

identification of his participation was made by Hill, a

cooperating witness. While evidence of the murders may not have

been admissible, evidence of the home invasion, which was

"inextricably intertwined" with the defendant's earlier attempts

to obtain money through the armed robbery, would have been

permitted. Marrero, supra at 67-68, quoting Commonwealth v.

Bradshaw, 385 Mass. 244, 269 (1982) (prior bad act evidence

"inextricably intertwined" with charged offense allowed to rebut

inference of "inexplicable act of violence").

The defendant also argues that joinder was improper because

the best interests of justice supported severance. The "best

interests of justice" are determined by "weighing the

defendant's interests against judicial economy." Gray, 465

Mass. at 335, quoting Commonwealth v. Sylvester, 388 Mass. 749,
 28

758 (1983). The defendant's argument is unavailing because

considerable evidence of the home invasion and armed robbery

would have been admissible in separate trials. Additionally,

the judge repeatedly instructed the jury that the Commonwealth

had the burden of proving each separate indictment beyond a

reasonable doubt.9 Thus, there was no abuse of discretion in the

denial of the defendant's motion to sever. See Gray, supra at

336-337.

3. Relief pursuant to G. L. c. 278, § 33E. We have

examined the record pursuant to our duty under G. L. c. 278,

§ 33E, and we discern no basis on which to grant the defendant

relief.

So ordered.

9
In addition to instructing the jury in the preliminary and
final instructions that the Commonwealth must prove beyond a
reasonable doubt each of the elements of each offense, the judge
gave the following preliminary instructions:

"What I do want to discuss at this point is that each
defendant is entitled to individual judgment and the
Commonwealth is entitled to your individual judgment as to
each defendant. And that goes for each defendant and each
count. So, although we have a number of counts against
each defendant and we have a number of defendants together
in the courtroom, it’s not a case of one for all and one
for all. It may be that you find all the defendants not
guilty, or some guilty and some not guilty, or some perhaps
guilty on some charges and not the others. So I guess a
short way to say that is that everybody concerned is
entitled to have you exercise individual judgment as to
each defendant and each charge."