Commonwealth v. Neves

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SJC-11173

COMMONWEALTH vs. ADILSON F. NEVES.

Plymouth. October 9, 2015. - May 25, 2016.

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

Homicide. Felony-Murder Rule. Constitutional Law, Admissions
and confessions, Waiver of constitutional rights,
Voluntariness of statement. Evidence, Admissions and
confessions, Voluntariness of statement, Testimony before
grand jury. Grand Jury. Practice, Criminal, Capital case,
Admissions and confessions, Waiver, Voluntariness of
statement, Grand jury proceedings, Transcript of testimony
before grand jury, Sequestration of witnesses, Striking of
testimony, Request for jury instructions.

Indictment found and returned in the Superior Court
Department on May 15, 2008.

A pretrial motion to suppress evidence was heard by
Christine M. Roach, J., and the case was tried before Jeffrey A.
Locke, J.

Jeffrey L. Baler for the defendant.
Gail M. McKenna, Assistant District Attorney (Audrey
Anderson, Assistant District Attorney, with her) for the
Commonwealth.
 2

LENK, J. The defendant was convicted by a Superior Court

jury of murder in the first degree on a theory of felony-murder

in the 2008 shooting death of Edward Conley, a Brockton taxicab

driver. Before us is the defendant's appeal from his

conviction. The defendant asserts error in four respects:

(1) the failure to suppress statements later admitted in

evidence that were made involuntarily to police, in violation of

his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 444-

445 (1966) (Miranda); (2) the introduction over objection of a

witness's grand jury testimony after the witness claimed a loss

of memory; (3) the failure to strike, upon request, another

witness's testimony after learning that he had violated a

sequestration order; and (4) the failure to give a requested

instruction on involuntary manslaughter. The defendant also

seeks relief under G. L. c. 278, § 33E. While we conclude that

some of the defendant's statements to police were not made

voluntarily and should not have been admitted, any error was

harmless beyond a reasonable doubt. We also conclude that the

judge's rulings with respect to the contested witness testimony

and the instruction on involuntary manslaughter were not in

error. Having reviewed the entire record, we affirm the

conviction and discern no reason to exercise our authority to

grant extraordinary relief.
 3

1. Factual background. We recite the facts the jury could

have found, reserving certain details for later discussion. In

early February, 2008, the defendant discussed plans to rob a

drug dealer with Jeffrey Milton, Antonio Fernandes, and Brandon

Walters. On February 15, 2008, however, the drug dealer whom

the defendant had in mind was not available. The defendant

proposed to the group that they instead rob a taxicab driver.

The defendant showed them that he had a gun.

Shortly after midnight, the defendant drove Milton in the

defendant's automobile, a green Honda, to a pay telephone.

Using a female-sounding voice, Milton telephoned for a taxicab

to come to a specific address on Galen Street in Brockton. The

defendant previously had identified that address as being

"perfect" for robbing a taxicab driver: it was at the end of a

dead end street, and the nearby street lighting was dim.

The defendant and Milton then picked up Fernandes and

Walters, and drove to the end of another street that was close

to Galen Street. While Milton and Walters waited with the

defendant's Honda, the defendant and Fernandes went to meet the

taxicab, which was not visible from where the Honda was parked.

When the taxicab arrived, the defendant telephoned Walters to

tell him to start the Honda's engine. The defendant got into

the back seat of the taxicab, behind the driver, Conley.

Fernandes also got into the back seat, but on the passenger's
 4

side. The defendant then took out the gun and pointed it at

Conley, and Fernandes told Conley to give them his money.

Conley panicked and grabbed for the gun. Although the

progression of the subsequent events is disputed, it is clear

that, at some point, the gun discharged, and Conley was shot in

the back of the head behind the right ear at close range. It is

also clear that the taxicab accelerated away from the end of

Galen Street and crashed into a fence near a house farther up

the street.

The defendant and Fernandes jumped out of the vehicle while

it was still in motion and ran back to the Honda. Fernandes

reached the Honda first, followed closely thereafter by the

defendant, who was injured and missing a shoe. The defendant

said that he had lost his cellular telephone. He then handed

something wrapped in a sweatshirt to Walters, and Walters put it

in the trunk. They drove away.

In the early morning hours of February 16, 2008, the

defendant woke up Nicole Resendes, his then girl friend. He

told her that his cellular telephone and shoes had been stolen

from him in a robbery. He later asked his associate Joao Cruz
 5

explicitly to be his "alibi" for the time of the shooting,

relating to him a story similar to the one he had told Resendes.1

Soon after the shooting, police found Conley slumped over

the steering wheel and unresponsive. Conley was taken to a

local hospital, where he was pronounced dead between 1 and

2 A.M. Police did not find any identifiable fingerprints at the

scene, but did find a shoe on the street approximately fifty

yards from the crash that had Conley's blood on it.2 After a tip

from a suspect in an unrelated crime, the investigation

eventually turned to the defendant. Police questioned the

defendant at the Brockton police station on March 14, 2008, and

again after his arrest on March 24, 2008. During the second

interview, the defendant stated that he shot Conley. Each

interview was audio-video recorded.

2. Procedural background. On May 15, 2008, a grand jury

returned an indictment charging the defendant with murder in the

first degree, G. L. c. 265, § 1. Before trial, the defendant

1
Joao Cruz was granted immunity in exchange for his
testimony, and the jury were so instructed.
2
The deoxyribonucleic acid (DNA) profile of Edward Conley
matched a DNA sample obtained from swabs of human blood spatter
found on the left lace area and left heel area of the shoe. The
probability of a randomly selected unrelated individual having
the DNA profile matching that obtained from each of these areas
was one in 4.895 quadrillion of the Caucasian population, one in
5.255 quintillion of the African-American population, and one in
8.41 quadrillion of the Hispanic population.
 6

moved to suppress the statements he made during both police

interviews. After an evidentiary hearing on October 21, 2010, a

Superior Court judge denied the motion. At trial, the jury were

shown slightly redacted versions of the interviews.

The defendant did not testify. His theory of defense was

that his recorded statements had not been made voluntarily, that

the Commonwealth's witnesses at trial were not credible, and

that Conley's death occurred accidentally after the armed

robbery had ended.

After the close of all the evidence, the jury were

instructed on murder in the first degree on theories of

premeditation, extreme atrocity or cruelty, and felony-murder by

armed robbery or attempted armed robbery.3 On April 15, 2011,

the defendant was convicted of murder in the first degree on a

theory of felony-murder.4 The defendant, who was seventeen years

old at the time of the shooting, was sentenced to the then-

mandatory term of life in prison without the possibility of

3
The defendant was not separately indicted for armed
robbery.
4
Antonio Fernandes, who was sixteen at the time of the
shooting, was tried separately. He pleaded guilty to
manslaughter and was sentenced to a term of incarceration of
from ten to twelve years in State prison. The record does not
make clear how Jeffery Milton's case was resolved, but he
testified pursuant to a plea agreement. On cross-examination,
he stated that he expected to receive a sentence of from eight
to ten years in exchange for his testimony. Brandon Walters was
not charged.
 7

parole.5 This appeal followed.

3. Discussion. The defendant claims reversible error in

four respects. First, he argues that it was error to deny his

motion to suppress statements he made to police, because the

waiver of his Miranda rights was not valid and because his

statements were not made voluntarily. Second, he argues that it

was error to permit the introduction of grand jury testimony

from a witness (Resendes) who claimed memory loss during her

trial testimony. Third, he argues that it was an abuse of

discretion not to strike a witness's testimony after the witness

(Milton) violated a sequestration order. Fourth, he argues that

it was error for the judge not to give an instruction on

involuntary manslaughter. Each of the claimed errors was

preserved. Finally, the defendant asks that we grant a new

trial or reduce the verdict to a lesser degree of guilt pursuant

to our power under G. L. c. 278, § 33E.

For the reasons that follow, we affirm the defendant's

conviction and decline his request that we grant him

extraordinary relief pursuant to G. L. c. 278, § 33E.

a. Motion to suppress. The defendant argues that it was

error to deny his motion to suppress statements made to Brockton

5
See Diatchenko v. District Attorney for the Suffolk Dist.,
466 Mass. 655, 658-659, 674 (2013), S.C., 471 Mass. 12 (2015)
(requiring meaningful possibility of parole for juveniles
convicted of murder in first degree).
 8

police officers during two interviews on March 14, 2008, and

March 24, 2008. During the first interview, the defendant

admitted that the shoe found on Galen Street was his, but denied

any involvement in the events leading up to Conley's death.

During the second interview, however, the defendant admitted,

among other things, to holding the gun when Conley was shot.

Statements of a defendant subject to custodial

interrogation must be suppressed if the Commonwealth cannot

prove beyond a reasonable doubt both that the defendant validly

waived his Miranda rights, see Miranda, 384 U.S. at 444-445, and

that he made the statements voluntarily.6 See Commonwealth v.

Pucillo, 427 Mass. 108, 110 (1998). The defendant contends that

he did neither. He also contends that he explicitly invoked his

or her right to silence in the middle of the second interview,

and that the police failed scrupulously to honor that request.

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 the judge's ultimate findings

and conclusions of law." Commonwealth v. Washington, 449 Mass.

476, 480 (2007), citing Commonwealth v. Scott, 440 Mass. 642,

6
Although the defendant was not under arrest at the time of
the first interview, we assume arguendo that the circumstances
of the interview established a custodial situation requiring
that the defendant be informed of his Miranda rights. See
Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001).
 9

646 (2004). "The determination of the weight and credibility of

the testimony is the function and responsibility of the judge

who saw and heard the witnesses, and not of this court."

Commonwealth v. Moon, 380 Mass. 751, 756 (1980). Where a

decision is based on recorded rather than live testimony,

however, "we will 'take an independent view' of recorded

confessions and make judgments with respect to their contents

without deference to the fact finder, who 'is in no better

position to evaluate the[ir] content and significance.'"

Commonwealth v. Novo, 442 Mass. 262, 266 (2004), quoting

Commonwealth v. Bean, 435 Mass. 708, 714 n.15 (2002).

The motion judge concluded that the defendant validly

waived his Miranda rights, and that his statements during both

interviews were voluntary. Her conclusions were based on her

analysis of the recorded interviews and her assessment of live

testimony from two clinicians (one testifying for the

Commonwealth and one for the defendant) concerning the effect of

childhood lead poisoning on the defendant's ability to

understand his rights.7 The judge gave little weight to the

testimony of either expert.

7
The motion judge also heard testimony from one of the
police officers who interviewed the defendant; she did not
address that testimony explicitly in her analysis.
 10

For reasons we explain, we agree with the determination of

the motion judge that the defendant validly waived his Miranda

rights at both interviews. We further agree that the defendant

made voluntary statements at the first interview, and initially

made voluntary statements at the second interview. Thereafter,

however, the police failed to honor scrupulously the defendant's

repeated requests to end questioning. The statements he made

subsequent to those requests therefore should have been

suppressed. Nonetheless, given the other properly admitted

evidence, their admission was harmless beyond a reasonable

doubt.

i. Miranda waivers. "A valid Miranda waiver is one that

is made knowingly, intelligently, and in all respects,

voluntarily." Commonwealth v. Selby, 420 Mass. 656, 660 (1995),

S.C., 426 Mass. 168 (1997). In determining the validity of a

waiver, relevant considerations include the totality of the

circumstances, such as "promises or other inducements, conduct

of the defendant, the defendant's age, education, intelligence

and emotional stability, experience with and in the criminal

justice system, physical and mental condition, the initiator of

the discussion of a deal or leniency (whether the defendant or

the police), and the details of the interrogation, including the

recitation of Miranda warnings." Id., quoting Commonwealth v.

Mandile, 397 Mass. 410, 413 (1986).
 11

The defendant argues that he did not validly waive his

Miranda rights at either interview because he was seventeen

years old at the time of the interviews, and because his

exposure to lead paint as a child limited his ability to

understand his rights before waiving them. In light of the

totality of the circumstances, however, we conclude that the

Miranda waivers were valid.

Deferring to the motion judge's assessment, we afford

little weight to expert testimony concerning the defendant's

ability to comprehend and validly waive his Miranda rights.

According to the defendant's expert, a forensic psychologist,

the defendant's "performance in tests of attention and

concentration were atrociously poor." Yet the motion judge

specifically described as "dubious" the psychologist's

contention that the defendant's intelligence quotient had

dropped from ninety-six in 2006 to seventy-five in 2009

(following his arrest in this case), putting him in the fifth

percentile for his age group.8 On the other hand, the

Commonwealth's expert, a physician specializing in childhood

lead poisoning, asserted that he had never encountered a patient

with the defendant's level of intelligence and creativity who

could not understand "simple instructions" like Miranda rights.

8
In 2006, the expert had measured the defendant's
intelligence quotient as part of an unrelated civil case.
 12

We discern no error in the motion judge's assessment of this

conflicting testimony.

It is evident from the video recordings that, at the

beginning of each interview, the police read the defendant the

Miranda rights and showed him a paper copy of those rights.9

Both times, the defendant stated that he understood his rights,

and signed a waiver form. The recorded interviews do not

indicate that the police induced the defendant to waive his

rights in any way. He appeared confident and composed during

each interview, and specifically confirmed at the beginning of

the first interview that he was not under the influence of drugs

or alcohol. Although the defendant was only seventeen at the

time of the interviews, he had prior experience with the Miranda

warnings. The totality of the circumstances indicates that the

defendant validly waived his Miranda rights at each interview.

ii. Voluntariness of statements. Whether a defendant has

validly waived his rights is a separate question from whether

his or her subsequent statements were voluntary, but one that

similarly "require[s] us to examine the totality of the

circumstances surrounding the making of the statements to ensure

that the defendant's will was not overborne." Commonwealth v.

9
Police also read the defendant his Miranda rights while he
was being transported to the Brockton police station for the
second interview.
 13

Hoose, 467 Mass. 395, 403 (2014). Statements made after a valid

waiver are considered voluntary if they are the product of a

"rational intellect" and a "free will" (citation omitted).

Commonwealth v. Davis, 403 Mass. 575, 581 (1988), S.C., 410

Mass. 680 (1991).

The defendant argues that his free will at both interviews

was overborne by the aggressive tactics the police employed

during the first interview, tactics so coercive that they also

rendered involuntary his statements at the second interview. We

do not agree. While "we expressly disapprove of the tactics of

making deliberate and intentionally false statements to suspects

in an effort to obtain a statement," Commonwealth v.

DiGiambattista, 442 Mass. 423, 432 (2004), quoting Commonwealth

v. Jackson, 377 Mass. 319, 328 n.8 (1979), the use of such

aggressive interrogation techniques is just one factor to be

considered in analyzing the totality of the circumstances. See

Commonwealth v. Baye, 462 Mass. 246, 256 (2012) (Baye), citing

Commonwealth v. Tremblay, 460 Mass. 199, 210-211 (2011).

During the first interview, police questioning intensified

as it became clear that the defendant was unwilling to admit to

having been involved in the shooting. Police told him that they

were in possession of his cellular telephone and cellular site
 14

location information, although they were not;10 that they had

"terrific" surveillance video footage of his Honda near the

location of the shooting, although they did not; and that his

fingerprint had been found on the taxicab, although that was not

the case. In addition, police encouraged the defendant to "come

clean" in order to protect his girl friend and to prevent his

eleven year old brother from thinking that he was a "monster."

These tactics did not, however, overbear the defendant's

will. In Baye, supra at 257-258, we concluded that a

defendant's statements should have been suppressed where

considerably more aggressive police interrogation over the

course of ten hours induced the defendant to admit that he had

committed the crime being investigated. The defendant here, on

the other hand, was unshaken by the officers' questioning over

the course of the first interview, which lasted approximately

two and one-half hours. Despite the officers'

misrepresentations, the defendant had strong reason to suspect

that the police knew less about the shooting than they claimed,11

10
Police never found the defendant's cellular telephone.
11
For example, the officers claimed that they had found the
defendant's fingerprint on the exterior of the taxicab, but the
defendant was wearing gloves at the time of the shooting. They
also claimed to know that Nicole Resendes, the defendant's girl
friend at the time, had telephoned for the taxicab. Yet the
defendant knew that Milton, not Resendes, called the taxicab
company, because he had been with him when the call was made.
 15

and repeatedly told them that he did not believe them.

Throughout that interview, he adhered to a more detailed version

of the alibi that he previously had related to Resendes and

Cruz. He explained that on the night in question his shoes and

cellular telephone, among other items, were stolen from him at

gunpoint at a location on the opposite side of Brockton from

where Conley was found. These factors, along with the factors

examined in more detail in our discussion of the defendant's

valid Miranda waivers, supra, lead us to conclude that the

defendant's statements at the first interview were voluntary.

The defendant's statements at the second interview also

initially were voluntary. From the start of the interview, when

the defendant knew he was in custody and had been charged with

murder, he was forthcoming about his involvement in the events

leading up to Conley's death.12 Although police informed the

defendant that he had "one shot" to talk, they did not employ

the other aggressive tactics that they had used during the first

interview. Furthermore, the police tactics used during the

12
Immediately after waiving his Miranda rights, the
defendant stated that he "didn't even pull the trigger down."
He explained that he and Fernandes had been planning to rob a
drug dealer and had called a taxicab to go to the drug dealer's
house, but that, en route, Fernandes unexpectedly pulled out a
gun. At that point, the defendant said, he jumped out of the
vehicle and ran away; he maintained that he was not in the
vehicle at the time of the shooting. He later recanted this
version of events, and stated instead that he had been holding
the gun when Conley was shot.
 16

first interview were not so coercive as to have rendered

involuntary the statements that the defendant made ten days

later. Moreover, the defendant attempted a number of times to

invoke his right to remain silent partway through the interview.

iii. Subsequent invocation of right to silence. Even if a

defendant initially waives the right to remain silent, he or she

may invoke that right at any point during questioning.

Commonwealth v. Clarke, 461 Mass. 336, 343 (2012) (Clarke),

citing Commonwealth v. Bradshaw, 385 Mass. 244, 265 (1982). A

subsequent invocation "must be clear and unambiguous[], such

that 'a reasonable police officer in the circumstances would

understand the statement to be an invocation of the Miranda

right.'" See Commonwealth v. Smith, 473 Mass. 798, 808 (2016)

(Smith), quoting Commonwealth v. Howard, 469 Mass. 721, 731

(2014). A postwaiver invocation must be "scrupulously

honor[ed]" by the police. See Smith, supra at , quoting

Miranda, supra at 479. Although police may seek to clarify a

defendant's ambiguous expression of an intent to stop

questioning, they may not "ignore[] the long-standing principle

that 'postrequest responses to further interrogation may not be

used to cast retrospective doubt on the clarity of the initial

request itself'" (citations omitted). Commonwealth v. Santos,

463 Mass. 273, 287 (2012) (Santos).
 17

Beginning approximately one hour into the second interview,

the defendant requested multiple times that the police stop

questioning him. He stated, "I don't even feel like talking,

man. I just, I just want to see my mom, dog." Rather than

seeking to clarify what the defendant meant by that statement,

one of the officers instead encouraged him to keep talking by

asking, "Did you tell your mom what happened?" After additional

questioning that included several more requests by the defendant

to see his mother, the following exchange took place:

Defendant: "I'm done, I'm done talking now."

Interviewer: "Listen. I'm asking you a couple easy
questions here."

Defendant: "No, no, I'm straight. I'm straight."

Interviewer: "You don't want to talk to me anymore?"

Defendant: "I mean, I want to s -- , if I could, if I
could just see my mom. I just want to see my mom."

After officers continued to question him, the defendant said,

"no, no, no, no, I want to talk to my mom, dude," and "I'm not

gonna answer no questions until I talk to my mom." Questioning

continued after these statements.

The motion judge acknowledged that the defendant claimed at

several points that he was finished talking, but downplayed the

importance of those claims because the defendant continued to

speak with the police even after making them. That analysis is

incorrect. Standing alone, the defendant's statement that he
 18

"don't even feel like talking" might not have been sufficiently

clear to invoke his right to silence.13 Given that he was under

arrest at the time, police did not have to allow him to see his

mother.14 In light of this initial request, however, the

defendant's subsequent invocations of his right to silence were

unambiguous and unequivocal. See Commonwealth v. Santana, 465

Mass. 270, 282 (2013) (defendant's postwaiver statement that he

"couldn't say any more" invoked right to silence); Santos, supra

at 285 (defendant's postwaiver statement, "I'm not going on with

this conversation," invoked right to silence).

Police should have stopped questioning the defendant at

least as soon as he stated that he was "done talking now." In

failing to do so, they did not "scrupulously honor[]" his

invocation of his right to silence. See Clarke, supra at 351-

353, and cases cited.

13
See Commonwealth v. Clarke, 461 Mass. 336, 351-352
(2012), quoting Davis v. United States, 512 U.S. 452, 461 (1994)
("When law enforcement officials reasonably do not know whether
a suspect wants to invoke the right to remain silent, there can
be no dispute that it is a 'good police practice' for them to
stop questioning on any other subject and ask the suspect to
make his choice clear").
14
But see Commonwealth v. Smith, 471 Mass. 161, 162 (2015)
(requiring "on a prospective basis" that seventeen year olds
subject to custodial interrogation have opportunity to consult
meaningfully with interested adult before waiving their Miranda
rights).
 19

iv. Harmlessness beyond a reasonable doubt. Although the

statements the defendant made after invoking his right to

silence during the second interview should have been suppressed,

their admission in evidence was harmless beyond a reasonable

doubt. See Chapman v. California, 386 U.S. 18, 24 (1967). To

determine whether erroneously admitted evidence was harmless, we

consider factors such as "the importance of the evidence in the

prosecution's case; the relationship between the evidence and

the premise of the defense; who introduced the issue at trial;

the frequency of the reference; whether the erroneously admitted

evidence was merely cumulative of properly admitted evidence;

the availability or effect of curative instructions; and the

weight or quantum of evidence of guilt." Commonwealth v. Tyree,

455 Mass. 676, 701 (2010) (Tyree), quoting Commonwealth v.

Dagraca, 447 Mass. 546, 553 (2006).

The defendant continued to speak with police for

approximately one and one-half hours after they failed

scrupulously to honor his invocation of his right to silence.

After that invocation, the defendant admitted for the first time

that he and his friends had planned specifically to rob a

taxicab driver on the night of the shooting. He also identified

Milton as the person who had called the taxicab company,

disguising his voice to sound like that of a female.

Furthermore, the defendant told one of the officers that he had
 20

telephoned the officer after the first interview in order to

confess, but that the officer had not picked up his telephone.

The defendant was allowed to call his mother from one of the

officer's cellular telephones during a break in questioning.

During that call, which was captured by the audio-video

recording device, the defendant told his mother that he

accidentally had shot Conley.

However, before invoking his right to silence at the second

interview, the defendant already had admitted to police that he

had shot the taxicab driver, albeit by accident, after Fernandes

instructed the driver to hand over his money. Other evidence

overwhelmingly corroborated essentially that version of events:

Milton testified that the defendant had proposed robbing a

taxicab driver and showed him a gun several hours before the

shooting; he further testified that, after the shooting, the

defendant ran back to the Honda wearing only one shoe.15 The

defendant's other shoe was found at the crime scene and tested

positive for Conley's blood. Witnesses also observed an

individual running away from the crashed taxicab with a limp; in

light of the abandoned shoe, this person reasonably could be

inferred to be the defendant. In addition, Cruz testified that

the defendant specifically had asked him to be his "alibi" for

15
As noted, see note 4, supra, Milton testified pursuant to
a plea agreement.
 21

the time of the shooting, and provided him with the same story

about having been robbed himself that he told police during his

first interview. Because of the weight of this other evidence,

the admission in evidence of the defendant's postinvocation

statements was harmless beyond a reasonable doubt. See Tyree,

supra at 701.

b. Admission of grand jury testimony. The defendant

argues that it was error to admit portions of the grand jury

testimony of Resendes, the defendant's girl friend at the time

of the shooting. Before the grand jury, Resendes described her

interactions with the defendant on the night of the shooting.

She also recounted statements that the defendant purportedly had

made to her while he was being held at the police station after

his arrest. The defendant told her that "[i]t was an accident"

and that "he probably is going to be doing a lot of time." When

called to testify at trial, however, Resendes repeatedly stated

that she no longer had any memory of these matters. The judge

determined that Resendes was feigning memory loss, and allowed

her grand jury testimony to be admitted substantively.

"It is an understandable concern . . . that grand jury

testimony admitted at trial for substantive use be subject to a

certain level of corroboration before a conviction can be based

on it." Commonwealth v. Sineiro, 432 Mass. 735, 744 (2000)

(Sineiro). Nonetheless, when a witness feigns memory loss, that
 22

witness's statement before the grand jury may be admitted

substantively if three general requirements are met: "(1) there

must exist an opportunity for effective cross-examination of the

witness at trial; (2) the witness's statement must clearly be

that of the witness, rather than the interrogator, and be free

from coercion; and (3) some corroborative evidence must be

presented." Id. at 741, citing Commonwealth v. Daye, 393 Mass.

55, 73-75 (1984).

All three of those requirements were met in this case.

The trial judge found that the defendant was able to cross-

examine Resendes, and that Resendes's statements to the grand

jury were hers rather than being merely affirmations of specific

leading questions by the prosecutor. In addition, the judge was

presented with corroborative evidence of Resendes's grand jury

testimony. At a voir dire hearing, a victim witness advocate

testified that Resendes had remembered the night of the shooting

"clearly" when the advocate interviewed her one week before

trial. Although the advocate was not asked specifically to

recall Resendes's statements about what the defendant told her

at the police station, the advocate described at length other

details of what Resendes had said during that conversation.

Based on this information, the trial judge correctly found that

Resendes's feigned memory loss was "affecting all aspects of her

testimony." The substantive admission of her grand jury
 23

testimony, including her description of the defendant's

statements at the police station, accordingly was proper. See

Sineiro, supra at 744-745.

c. Violation of sequestration order. The defendant

maintains that it was abuse of discretion to deny his motion to

strike Milton's testimony after Milton violated the

sequestration order.16 Although Milton was in custody at the

time of trial, his mother attended the proceedings the day

before he was scheduled to testify. She then advised him over

the telephone on how to testify based on what she had observed

in court the previous day. Because Milton's trial testimony

contradicted earlier statements he had made to police,17 his

mother suggested that if defense counsel accused him of lying,

he should explain that he initially had lied to police because

he was "scared." Milton followed his mother's advice when

cross-examined by defense counsel. The remainder of Milton's

testimony, however, was consistent with a prior written

statement he had provided to police, and with a recorded

interview.

16
The Commonwealth argued at trial that the sequestration
order had not been violated. On appeal, however, it does not
dispute that a violation occurred.
17
When first questioned by police, Milton said that he had
been with his family at the time of Conley's death.
 24

"[T]he remedy for violation of a sequestration order rests

within the sound discretion of the judge." Commonwealth v.

Bianco, 388 Mass. 358, 370 (1983). To establish that a judge

abused his or her discretion in denying a motion to strike, a

defendant must show that there was "'a clear error of judgment

in weighing' the factors relevant to the decision, . . . such

that the decision falls outside the range of reasonable

alternatives" (citations omitted). L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014).

In this case, the remedy the judge employed did not fall

outside the range of reasonable alternatives. Defense counsel

was able to cross-examine Milton regarding his mother's advice,

and counsel was provided with recordings of the conversations in

which that advice was given in order to determine exactly how

Milton's mother had coached him, so that counsel would be in a

position to propose an adequate remedy.18 The judge ultimately

instructed the jury after the close of evidence that they could

consider the fact that Milton's mother had told him to say he

lied to the police when evaluating his testimony. Despite his

earlier motion to strike Milton's entire testimony, defense

counsel himself stated that he was "satisfied" with the

instructional remedy. There was no abuse of discretion.

18
The conversations were recorded by house of correction
officials.
 25

d. Instruction on involuntary manslaughter. The defendant

asserts error in the judge's denial of his request for an

instruction on involuntary manslaughter. Essentially, he argues

that an instruction on involuntary manslaughter was warranted

because the jury reasonably could have found that the shooting

was accidental and outside the scope of the alleged armed

robbery.

The defendant has raised this issue only in the context of

the theory of felony-murder, notwithstanding that the jury also

were instructed on the theories of deliberate premeditation and

extreme atrocity or cruelty. Accordingly, we first consider

whether an involuntary manslaughter instruction was warranted as

a lesser included offense of murder under the theory of felony-

murder. Pursuant to our duty under G. L. c. 278, § 33E, we also

consider whether a manslaughter instruction was warranted under

the alternate theories of deliberate premeditation and extreme

atrocity or cruelty.

"An instruction on [involuntary] manslaughter is required

where any view of the evidence will permit a finding of

manslaughter and not murder." Commonwealth v. Jessup, 471 Mass.

121, 135 (2015) (Jessup), quoting Commonwealth v. Sires, 413

Mass. 292, 301 (1992). "In deciding whether a manslaughter

instruction is supported by the evidence, all reasonable

inferences must be resolved in favor of the defendant." Jessup,
 26

supra, quoting Commonwealth v. Vanderpool, 367 Mass. 743, 746

(1975).

Resolving all inferences in favor of the defendant here, we

conclude that an instruction on involuntary manslaughter was not

warranted as a lesser included offense of murder in the first

degree on a theory of felony-murder, but that such an

instruction was warranted under the theories of deliberate

premeditation and extreme atrocity or cruelty. Nonetheless, the

absence of the instruction did not create a substantial

likelihood of a miscarriage of justice.

For the jury to find a defendant guilty of murder in the

first degree on a theory of felony-murder with armed robbery as

the predicate felony, the killing must have occurred during the

commission or attempted commission of an armed robbery.19 See

Commonwealth v. Evans, 390 Mass. 144, 151-152 (1983) (Evans).

Nonetheless, "[w]here the felony-murder rule applies, generally

the defendant is not entitled to an instruction on

manslaughter." Jessup, supra at 135, quoting Evans, supra at

151. The defendant argues that the jury could have found that

he did not commit the homicide while the felony was still

ongoing. Pointing to the presence of blood on the taxicab's

airbags, as well as testimony from witnesses who reported

19
The jury were instructed accordingly.
 27

hearing only one "bang" rather than a separate crash and

gunshot, the defendant argues that the jury could have inferred

that the impact of the vehicle during the collision caused the

gun to go off after the robbery was over.

That argument, requiring speculation rather than reasonable

inferences, does not withstand scrutiny. For the jury to infer

that any blood found on the airbags was the result of a

postcollision shooting, they would have had to ignore evidence

that Conley continued to bleed after the shooting. They also

would have had to ignore evidence that the airbags already had

deployed when emergency personnel attempted to remove the

bleeding Conley from his vehicle. Any inference from the fact

that witnesses heard only a single noise to the effect that the

taxicab's collision therefore caused the gun to fire would have

been similarly far-fetched. To the contrary, extensive

evidence, including the defendant's own recorded statement,

indicated that the defendant jumped out of the vehicle before

the collision, still in possession of the gun.20 Because the

20
Before the defendant invoked his right to silence during
the second interview, the following exchange took place.

Interviewer A: "The, the car is moving right now. You
said [Conley] hit the gas. He's pulling on the gun. The
gun went off, so the car is moving now right?"

Defendant: "Yeah."
 28

inferences the defendant suggests the jury could have made would

not have been reasonable, the judge correctly rejected his

argument regarding the scope of the felony. See Jessup, supra

at 135.

In Jessup, however, the jury were instructed only on murder

in the first degree on a theory of felony-murder. Id. at 135-

136. Because the jury were instructed on all three theories of

murder in this case, the judge also should have considered

whether involuntary manslaughter was a lesser included offense

with respect to murder in the first degree on the theories of

deliberate premeditation and extreme atrocity or cruelty. We

conclude that an involuntary manslaughter instruction was

warranted on these theories.

"In a nonfelony-murder case, the fact that the shooting was

accidental negates the malice element required for murder."

Commonwealth v. Griffith, 404 Mass. 256, 260 (1989). The judge

recognized the possibility of accident in this case: the jury

Interviewer B: "Yeah, you guys are moving down the street
at a pretty good clip, too, eventually."

Interviewer A: "What happens next?"

Defendant: "I hopped out."

Other corroborating evidence included eyewitness testimony that
an individual was running with a limp at a substantial distance
from the taxicab immediately after it crashed. In addition, the
defendant's shoe was found with Conley's blood on it at a
substantial distance from where the vehicle finally crashed.
 29

were instructed that an accident resulting in death would negate

malice under the theories of deliberate premeditation and

extreme atrocity or cruelty. The jury were not, however,

similarly provided with a manslaughter instruction based on

these theories. Such an instruction should have been given,

because the jury reasonably could have concluded that the

shooting was accidental, based on the defendant's statements to

police that the gun discharged accidentally when the taxicab

driver accelerated and grabbed at the defendant's hand. See

Jessup, supra at 135.

Yet even if the jury also had been instructed on

involuntary manslaughter as a lesser included offense, the

evidence supporting a conviction on the theory of felony-murder

was overwhelming, and the jury ultimately convicted the

defendant on this theory. "A defendant who kills a victim in

the commission or attempted commission of a robbery, while the

defendant is armed with a gun, is guilty of murder by

application of the felony-murder rule. . . . The fact that,

according to the defendant, the gun was discharged accidently is

of no consequence." Evans, supra at 151-152. As noted, supra,

the defendant admitted to police that he shot Conley by accident

after his codefendant told Conley to hand over his money. See

Commonwealth v. DiGiambattista, 442 Mass. 423, 447 (2004)

(noting "exceptionally potent quality of a defendant's statement
 30

or confession" as evidence). Milton's testimony similarly

established that the defendant had proposed robbing a taxicab

driver and was in possession of a gun several hours before the

shooting. In light of this evidence, the absence of an

involuntary manslaughter instruction did not create a

substantial likelihood of a miscarriage of justice.

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

examined the record carefully pursuant to our duty under G.L.

c. 278, § 33E, and discern no basis on which to grant the

defendant relief.

Judgment affirmed.