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SJC-10046
COMMONWEALTH vs. JAMES M. RAKES.
Norfolk. April 7, 2017. - September 29, 2017.
Present: Gants, C.J., Lenk, Gaziano, Budd, & Cypher, JJ.
Homicide. Joint Enterprise. Grand Jury. Evidence, Grand jury
proceedings, Exculpatory, Prior misconduct, Joint venturer,
Hearsay, Statement of codefendant, Criminal records, Prison
record. Criminal Records. Practice, Criminal, Capital
case, Indictment, Grand jury proceedings, Fair trial,
Argument by prosecutor, Instructions to jury.
Indictments found and returned in the Superior Court
Department on April 1, 2002.
A motion to dismiss was heard by John C. Cratsley, J.; the
cases were tried before Judith Fabricant, J., and a motion for a
new trial, filed on November 6, 2013, was heard by her.
Alan Jay Black for the defendant.
Tracey A. Cusick, Assistant District Attorney,
for the Commonwealth.
LENK, J. In the summer of 1987, Jay B. Schlosser and his
girl friend, Heather Buchannan, were shot and killed in the
Westwood home they shared with John D. Sweeney. In 2005, the
2
defendant was convicted by a Superior Court jury as a joint
venturer on two counts of murder in the first degree on the
theories of felony murder, deliberate premeditation, and extreme
atrocity or cruelty. His coventurer, James P. Ridge, had been
tried separately at an earlier trial and had been convicted of
the victims' murders.1
The defendant appeals from his convictions and from the
subsequent denial of his motion for a new trial. He maintains
that the indictments should have been dismissed because the
evidence supporting them was insufficient and because the
Commonwealth's presentation impaired the integrity of the grand
jury by failing to disclose exculpatory evidence, introducing
prior bad acts, and commenting on the defendant's invocation of
his right to remain silent. As to the trial, the defendant
challenges the sufficiency of the evidence and claims structural
error and ineffective assistance of counsel in connection with a
purported court room closure during jury selection. He also
asserts error in the admission of certain hearsay evidence
concerning the joint venture, in the prosecutor's closing, and
in the jury instructions on reasonable doubt. He requests
relief under G. L. c. 278, § 33E. We affirm the convictions and
1
We affirmed James P. Ridge's convictions of two counts of
murder in the first degree on all three theories, and affirmed
the denial of postconviction relief. See Commonwealth v. Ridge,
455 Mass. 307 (2009).
3
the order denying the motion for a new trial, and, after careful
review of the record, decline to set aside the verdicts or
reduce the degree of guilt under G. L. c. 278, § 33E.
1. Background. We recite the facts that the jury could
reasonably have found, reserving certain details for later
discussion. The victims, Schlosser and Buchannan, were boy
friend and girl friend. Sweeney, the intended target of the
armed robbery underlying this case, had recently moved in with
the victims. The victims and Sweeney, along with Ridge, the
defendant's coventurer, and most of those involved in the events
surrounding the killings, were all part of the same social
circle, and all involved in the cocaine trade. The defendant
was not a member of that social circle, although Ridge knew him,
and Ridge's roommate, Kevin Trundley, knew who the defendant
was.
Most of the evidence presented at trial related to Ridge.
Sometime around 1986, Sweeney had convinced Ridge (a long-time
friend) and members of the Ridge family to invest $10,000 to
$15,000 in a business to retrieve treasure from a sunken ship in
the Caribbean. The business turned out to be a scam, and Ridge
and his family members lost all the money that they had invested
(as did Sweeney and members of his family). Sweeney pledged to
get Ridge his money back.
The promised reimbursement never materialized, other than
4
through Sweeney's efforts to pay Ridge back by giving him
cocaine free of charge. Ridge was angry that Sweeney appeared
to live in relative wealth while failing to pay Ridge the money
he felt he was owed. Trundley, a friend of both Sweeney and
Ridge, testified that Sweeney flaunted his wealth in Ridge's
presence. Ridge was "very upset about the way [Sweeney] was
living" in light of the slow repayment, and vowed to "get his
money" back.
In the months leading up to the killings, Ridge became
increasingly fixated on Sweeney. One witness testified that, at
some point, Ridge was at Sweeney's mother's house when Sweeney
was not present; he was shooting holes in Sweeney's shirts so
that Sweeney would not have nice clothes to wear.
Ridge began frequently asking various acquaintances where
Sweeney lived. At this time, Ridge was familiar with and had
access to firearms, and he regularly traveled with a duffel bag
containing "WD-40" metal lubricant, masks, and duct tape. On
multiple occasions, Ridge was seen loading firearms in a
peculiar manner: wearing gloves and spraying the bullets with
WD-40. Ridge contended that this method would ensure that he
left no traceable fingerprints. Roughly two months prior to the
killings, Ridge threatened Sweeney directly, saying he would
kill him if he did not receive his money.
Apparently in response to this threat, Sweeney left the
5
home he had previously shared with Trundley in the Jamaica Plain
section of Boston. He moved twice and ended up living in
Westwood with Buchannan and Schlosser, his partners in the
cocaine trade. Ridge, for his part, took Sweeney's place as
Trundley's roommate.
At some point Ridge learned, through Trundley, that Sweeney
had moved in with Schlosser and Buchannan. Approximately one
week before the killings, Ridge, Trundley, and their respective
girl friends drove past Sweeney's house. Both Trundley and his
girl friend testified that when passing the home, Ridge
instructed the driver to slow down. As the vehicle slowed to a
"crawl," Ridge slumped down in his seat and said he did not want
anyone to recognize him. He remarked that the house would be an
easy hit because of its location. Later that week, Ridge told
Trundley that he planned to rob Sweeney's house with a "brother
and sister" but refused to identify them.2 He explained further
that he planned the robbery for some time between 8 and 10 P.M.
on a rainy evening, when he expected the neighbors would have
their windows closed and would be watching television.
On June 25, 1987, Ridge told Trundley that the robbery
would take place that night. During the conversation, Ridge was
2
The Commonwealth argued that the robbery was committed by
Ridge, the defendant, and the defendant's sister, Patricia
Rakes. Patricia was scheduled to be tried jointly with the
defendant, but pleaded guilty to manslaughter after the jury had
been empanelled but before opening statements.
6
carrying the duffel bag that he regularly kept with him.
Trundley agreed with Ridge to provide a key to Sweeney's house,
but testified at trial that he had no such key and never
followed through on his promise. In addition, as Trundley
feared violence if Sweeney was in the house when the robbery
occurred, he persuaded Sweeney -- without explaining why -- to
leave his house and spend the evening with Trundley in Jamaica
Plain. The two men were joined by three women, and together the
group drank alcohol and consumed cocaine. At around 11 P.M.,
Sweeney and one of the women returned briefly to Sweeney's house
with plans to pick up more cocaine.3
Upon arriving, Sweeney saw the bodies of Schlosser and
Buchannan, bound in duct tape, on the couch. The whole house
looked as if it had been ransacked. An antique rifle belonging
to Schlosser lay in the kitchen, out of its normal storage
place, and there was a hole in the wall that, Sweeney testified,
had not been there earlier in the day. Sweeney left and
immediately returned to Jamaica Plain to meet Trundley. He did
not tell the woman with him what he had seen. Instead, on the
drive back, he telephoned Trundley and told him that the three
women would need to leave as soon as Sweeney arrived. They did
so. Sweeney then frisked Trundley, suspicious he may have been
3
Trundley testified that he permitted Sweeney to go back to
his house at this point because he expected the robbery to have
concluded.
7
involved in the killing. Finding no weapons, and apparently
thus satisfied, he then told him what he had seen. Sweeney next
telephoned a Federal Bureau of Investigation (FBI) agent he
knew. Early in the morning of June 26, Sweeney, Trundley, and
the FBI agent met and drove together to the Westwood police
station where they reported the victims' deaths. Police tested
Sweeney's hands for blood and found none. Officers were
dispatched to the house soon thereafter and found the victims'
bodies as described.
The police investigation revealed that the victims died as
a result of gunshot wounds. Buchannan was shot twice, including
once through the head, while Schlosser was shot once, with the
single bullet passing through his wrist and then entering his
skull. As mentioned, both victims were bound with duct tape
around the ankles, knees, and hands; their eyes, and Buchannan's
mouth, were also covered. Schlosser's mouth was not taped, but
there appeared to be duct tape residue around it, and there was
duct tape crumpled on the nearby coffee table. Two spent .38
caliber cartridges and three shell casings were found at the
scene. There were no eyewitnesses to the killing, the murder
weapon was never found, and there was no physical evidence
linking either Ridge or the defendant to the killing. Police
searched, but were not able to find any usable fingerprints.
There is no indication that police tested for deoxyribonucleic
8
acid (DNA); that method of identification was in its infancy at
the time.
Later that same day, Trundley and Sweeney drove to Cape
Cod. Sweeney called Ridge and asked him to join them, and Ridge
was driven down by Trundley's girl friend. On the drive, she
saw Ridge with a significant amount of cocaine despite the fact
that she knew him to be "broke" and unable to afford it at the
time. In addition, Ridge mentioned to her that he had to see
Trundley because "things didn't go right." The evening that
Ridge arrived, Trundley, who had expected only a robbery,
confronted him and asked, "Why did you kill those people?"
Ridge replied, "because she recognized me," and warned Trundley
to "keep [his] mouth shut." The next day, Sweeney and Trundley
went to retrieve Sweeney's vehicle, which he had allowed Ridge
to use, and found Ridge cleaning it out. Sweeney noticed a loan
coupon book in the vehicle, which he was certain he had left at
home on June 25. He abruptly took his vehicle back, and
immediately drove away alone, leaving Ridge and Trundley behind.
Trundley testified that, after learning of Ridge's
involvement with the murders, he "stayed away from him as much
as [he] could," but continued to speak to him on occasion. A
few weeks after their initial conversation, Ridge gave Trundley
a more detailed account of the robbery and the ensuing killings.
Ridge explained that when the robbers entered the home,
9
Schlosser grabbed an old rifle, but that "they beat him up, took
the rifle away, brought him into the living room, [and] duct
taped him."4 According to Ridge, Schlosser offered to give the
robbers whatever they wanted and further offered to withdraw
more money for them from the bank the following day. He pleaded
that "no one need[ed] to get hurt." As the robbers were about
to leave, "the person that [Ridge] went in there with said he
wasn't about to do any more time."5 Ridge responded, "I got you
into this, I'll get you out of this." He shot Buchannan twice
and subsequently shot Schlosser once. Ridge reported that,
although he stole some money and some cocaine from the home, he
did not get as much as he had hoped. He left some cocaine in
the home so that police would suspect that the murder was
related to drug sales, and be less interested in finding the
perpetrators.
Ridge again reminded Trundley to "keep [his] mouth shut."
He threatened to kill him should he tell police, and pointed out
that, as Trundley had aided in the preparation for the robbery,
he could face charges as a joint venturer. Ridge continued to
warn Trundley to stay silent over the course of the following
4
At that point, Ridge still had not identified the persons
who participated in the robbery with him, but acknowledged that
at least one other person was involved and used the plural
repeatedly.
5
The defendant had been released on parole seventeen days
prior to the killings.
10
year. Trundley appears to have heeded these warnings for some
time, but was cooperating with police by the summer of 1988.
Two out-of-court statements by Ridge and one by the
defendant himself linked the defendant to the killings. The
first was made by Ridge to Trundley sometime in late fall of
1987, several months after the murders. At the time, Trundley
felt threatened by certain persons from whom he was attempting
to collect a debt, and called Ridge for help. Ridge told him he
would "call up Rakesy and . . . come out there." Ridge
clarified that he was referring to "Jimmy Rakes" and that Rakes
was "the guy I did Westwood with."
The other inculpatory statements were made much later.
Ridge and the defendant were both indicted on April 1, 2002, and
arraigned in Superior Court the following day. They were
thereafter held in the Dedham house of correction. Ridge told
Mark Condon, an inmate who was being transferred between units
at the same institution, to "tell Rakes my end is tight." The
defendant also became friendly with Condon while incarcerated.
When Condon mentioned that he knew the reason for the
defendant's incarceration and had read about it in the
newspaper, the defendant replied, "It was the other guy [who]
shot them" while pointing toward Ridge's unit, and added that
"nobody planned on getting shot."
2. Discussion. a. Motion to dismiss. Prior to trial,
11
the defendant moved to dismiss the indictment on several
grounds, and he renews most of his contentions on appeal.
Specifically, he argues that the evidence before the grand jury
was insufficient to demonstrate probable cause, and that the
integrity of the grand jury was impaired both by the
Commonwealth's failure to present certain exculpatory evidence
and by inappropriate references to his criminal history and his
invocation of the right to remain silent. We discern no error
warranting dismissal of the indictments or reversal of the
convictions.
i. Insufficient evidence. The defendant first contends
that the indictment was not supported by sufficient evidence.
An appellate court reviews the sufficiency of the evidence
supporting an indictment in the light most favorable to the
Commonwealth. See, e.g., Commonwealth v. Levesque, 436 Mass.
443, 444 (2002). To sustain an indictment, the grand jury must
be presented with "sufficient evidence to establish the identity
of the accused . . . and probable cause to arrest him" for the
crimes charged (citation omitted). Commonwealth v. McCarthy,
385 Mass. 160, 163 (1982). Probable cause requires only
evidence "sufficient to warrant a reasonably prudent [person] in
believing that the [accused] had committed" the offense
(citation omitted). Id. at 163. "This standard . . . has been
employed primarily to strike down indictments in cases where a
12
grand jury has heard . . . no evidence whatever that would
support an inference of the defendant's" guilt (citation
omitted). Commonwealth v. Truong Vo Tam, 49 Mass. App. Ct. 31,
37 (2000).
In this case, the grand jury heard sufficient evidence to
warrant a finding of probable cause. Three witnesses linked the
defendant to the robbery and killing. Sergeant Richard Nagle of
the State police testified that he spoke to Michaelina Karos,
the defendant's girl friend at the time of the killings,
multiple times when investigating this case. According to a
conversation between Nagle and Karos in 1992, the defendant had
admitted his involvement to her soon after the victims' deaths.
The defendant told Karos that he "just killed two people
somewhere out in Marlborough or some fucking place," "a guy and
a girl," and that the victims had been tied up with duct tape.
He explained that he killed them to avoid being identified and
facing prison time for armed robbery. Trundley testified to a
conversation in which Ridge said that along with the defendant
and a woman, he robbed the victims of money and cocaine, bound
them with duct tape, and killed them. Finally, Mary Bergin, a
friend of the defendant, testified to a conversation with the
defendant's sister Patricia. Patricia said that she, the
defendant, and Ridge "taped [the victims] up . . . and they shot
them."
13
While the evidence before the grand jury consisted purely
of hearsay, "[w]e have consistently and without notable
exception held that 'an indictment may be based solely on
hearsay.'" Commonwealth v. Stevenson, 474 Mass. 372, 376
(2016), quoting Commonwealth v. O'Dell, 392 Mass. 445, 450-451
(1984). Only in "extraordinary circumstances" does the
exclusive reliance on hearsay so impair the grand jury
proceedings as to warrant dismissal. Stevenson, supra at 377.
We discern no such extraordinary circumstances in this case.
ii. Impairment of grand jury integrity through failure to
present exculpatory evidence. The defendant also argues for
dismissal of the indictments on the ground that the integrity of
the grand jury was impaired by the Commonwealth's failure to
present certain exculpatory evidence. See O'Dell, 392 Mass. at
449. Generally, "the mere withholding of exculpatory evidence
[from a grand jury] is not a proper ground for the dismissal of
an indictment." Commonwealth v. Pina, 406 Mass. 540, 549, cert.
denied, 498 U.S. 832 (1990). There are two exceptions to this
rule: if evidence was withheld in a manner that distorts the
meaning of the evidence admitted, or if the exculpatory evidence
was so powerful it would have severely undermined the
credibility of an important witness or likely have led the grand
jury not to indict. See Commonwealth v. Wilcox, 437 Mass. 33,
37 (2002); Commonwealth v. McGahee, 393 Mass. 743, 747 (1985);
14
O'Dell, supra at 449.
The defendant contends that two pieces of evidence could
have undermined the credibility of the witnesses before the
grand jury. Neither, however, was of sufficient significance to
require that it be introduced. First, the defendant argues that
the grand jury should have been told that Bergin admitted to
being under the influence of cocaine during her conversation
with Patricia Rakes. Nagle's police report indicates that
Bergin told him, "I remember it was the 80's because I was doing
[c]oke at the time . . . . [Patricia] came over . . . [Patricia]
was nervous/paranoid looking out the window. But at the time we
were all paranoid looking out the window[,] because we all did
coke." This statement does not indicate that Bergin was
intoxicated at the time of her conversation with Patricia.
Rather, it is best read as an acknowledgment by the witness that
she had used cocaine regularly in the years surrounding the
victims' deaths and, as a result, feared the possibility of
arrest. The admission of chronic drug use fifteen years prior
to her statement would not "greatly undermine" Bergin's
credibility or the Commonwealth's case. Cf. Commonwealth v.
LaVelle, 414 Mass. 146, 150-151 (1993) (even prior criminal
convictions of grand jury witness would not "greatly undermine"
credibility).
Second, the defendant claims that the grand jury should
15
have been told of Federal indictments against FBI Agent John
Connolly, whom Sergeant Nagle referenced. He argues that the
integrity of the proceedings were undermined by the failure to
disclose indictments for Connolly's offenses, including
obstruction of justice, racketeering, and conspiracy.6 This
evidence also need not have been placed before the grand jury.
Connolly was mentioned only briefly and in passing, and his
credibility was not relevant to the grand jury's determination.
Sergeant Nagle testified that he first heard the defendant's
name when "an FBI agent named Connolly . . . called . . . and he
said, 'The person you want to look at is James Rakes.'" The
subsequent investigation of the defendant, which led to the
inculpatory evidence placed before the grand jury, did not
involve Connolly at all.
iii. Impairment of grand jury integrity through evidence
of prior bad acts and reference to invocation of right to
silence. Before the grand jury, Nagle made certain references
to both the defendant's unrelated bad acts and his invocation of
the right to silence. Specifically, Nagle related three
statements that Karos ascribed to the defendant: that "he kills
people for money," that "his sister . . . introduced him to
6
The government contended that John Connolly committed
these offenses in aid of the criminal enterprise led by James
"Whitey" Bulger. See United States v. Connolly, 341 F.3d 16
(1st Cir. 2003).
16
Whitey Bulger when he was seventeen," and that she should always
"remember the five P's when you kill someone -- proper planning
prevents poor performance." Soon thereafter, however, the
prosecutor instructed the grand jurors that "you've heard some
testimony . . . [that] at least some of the individuals hav[e]
been involved in other crimes, and you should not use that in
your consideration of whether or not they committed these
particular crimes." Nagle also commented on the defendant's
invocation of his right to silence. He told the grand jurors
that he had asked the defendant about his relationship with
Ridge, and the defendant replied, "This is where I stop
answering questions." He added that, when confronted with
details of the murders during the interview, the defendant's
"eyes began to fill up with tears" and he stared at the floor.
To warrant reversal, the defendant must show not only that
the statements were inappropriate, but also that "viewed in the
context of all the evidence presented to the grand jury, [the
statements] 'probably made a difference,' in [the] decision to
indict" (emphasis added). Commonwealth v. Freeman, 407 Mass.
279, 283 (1990), quoting Commonwealth v. Mayfield, 398 Mass.
615, 621-622 (1986). On this record, the defendant cannot make
that showing. The appropriately admitted evidence was more than
sufficient to demonstrate probable cause. Moreover, the
prosecutor's clear and relatively contemporaneous instruction
17
presumably mitigated the prejudice from the introduction of
prior bad acts evidence. See, e.g., Commonwealth v. Jenks, 426
Mass. 582, 587 (1998). Testimony regarding the defendant's
invocation of his right to silence added little to the
Commonwealth's case, as the grand jury heard stronger evidence
of the defendant's consciousness of guilt in the form of his
confession to Karos.
b. Sufficiency of the evidence. The defendant contends
that there was insufficient evidence to convict him under any of
the three theories of murder in the first degree and that his
motion for a required finding should have been allowed. Because
the defendant was convicted as a joint venturer, we must
determine whether the evidence showed that he knowingly
participated in the commission of the crime charged, alone or
with others, with the intent required for the offense. See
Commonwealth v. Benitez, 464 Mass. 686, 689 (2013), citing
Commonwealth v. Zanetti, 454 Mass. 449, 467-468 (2009).7
7
Both parties cite the formulation of the joint venture
standard that was commonly used in jury instructions prior to
our decision in Commonwealth v. Zanetti, 454 Mass. 449 (2009).
This standard asks whether a defendant was "(1) present at the
scene of the crime, (2) with knowledge that another intends to
commit the crime or with intent to commit a crime, and (3) by
agreement, was willing and available to help the other if
necessary" (citation omitted). Id. at 455. See, e.g.,
Commonwealth v. Green, 420 Mass. 771, 779 (1995). The test we
apply today does not differ in substance from that one, but is
simply intended to provide clearer guidance. Commonwealth v.
Miranda, 474 Mass. 1008, 1008-1009 (2016).
18
To determine whether the Commonwealth met its burden, we
apply the familiar Latimore standard: whether viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. See Commonwealth v.
Latimore, 378 Mass. 671, 677 (1979). A conviction may rest
exclusively on circumstantial evidence, and, in evaluating that
evidence, we draw all reasonable inferences in favor of the
Commonwealth. See, e.g., Commonwealth v. Lydon, 413 Mass. 309,
312 (1992), overruled on other grounds by Commonwealth v. Britt,
465 Mass. 87, 100 (2003). A conviction may not, however, be
based on conjecture or speculation. See, e.g., Commonwealth v.
Gonzalez, 475 Mass. 396, 407 (2016). The defendant was
convicted under three theories, and we consider each in turn.
i. Felony-murder. The predicate felony alleged at trial
was armed robbery. To warrant a conviction of felony-murder as
a joint venturer with armed robbery as the predicate felony, the
Commonwealth had to prove that "the defendant was a joint
venturer in an armed robbery and that [the victims'] death
occurred 'in the commission or attempted commission of' that
[armed] robbery." Commonwealth v. Williams, 475 Mass. 705, 710
(2016), quoting G. L. c. 265, § 1. To find the defendant guilty
of the underlying felony of armed robbery, proof was required
that the defendant was part of a venture in which at least one
19
of the coventurers was armed with a dangerous weapon, either
applied violence to the victims' bodies or put them in fear, and
took the victims' property with the intent to steal it. Id.,
and cases cited. Absent proof that the defendant himself was
armed, proof that he knew his coventurer to be armed suffices to
satisfy the standard. Id.
Ridge's statements indicated that a group, including at
least one member who was armed, went to the house that Sweeney
shared with the victims with the intent to burglarize it. The
robbers bound the victims in duct tape and Ridge shot them. The
perpetrators then took money and cocaine from the home. The
jury could have inferred the defendant's participation in this
robbery from, among other things, the fact that Ridge identified
him as "the guy I did Westwood with."
The jury could further conclude that the defendant knew
Ridge to be armed. A jury can infer that a defendant knew his
or her coventurer to be armed in cases where the victims'
resistance can reasonably be anticipated, as the defendant is
presumed to recognize the need for a means by which to overcome
that resistance. Commonwealth v. Netto, 438 Mass. 686, 702-703
(2003), and cases cited. In this case, the victims were to be
robbed in their own home and were drug dealers. These factors
were sufficient for the jury to conclude that the defendant
would reasonably have expected the need to overcome resistance,
20
and therefore that he knew Ridge to be armed. See id. at 703
(robbery in victim's home); Williams, 475 Mass. at 711 (victim
was drug dealer); Commonwealth v. Housen, 458 Mass. 702, 708
(2011) (same). Even if the defendant had been unaware that
Ridge possessed a weapon in advance, it would be reasonable to
conclude that he became aware over the course of the robbery and
continued to participate, implicating him in the joint venture.
Williams, supra at 711, citing Commonwealth v. Norris, 462 Mass.
131, 140 (2012).
ii. Deliberate premeditation. Taken in the light most
favorable to the Commonwealth, the evidence was also sufficient
to sustain the conviction on the theory of deliberate
premeditation. Under this theory, the Commonwealth was required
to prove that the defendant caused the victims' deaths, that he
did so intentionally, and that he did so "after a period of
reflection." See Gonzalez, 475 Mass. at 406, quoting Model Jury
Instructions on Homicide 37 (2013). Because the defendant did
not carry out the killings himself, the Commonwealth had to show
that he participated in the killings, that he did so knowing of
his coventurer's intent to kill the victims, and that he shared
the necessary specific intent to kill. See Gonzalez, supra,
quoting Britt, 456 Mass. at 100-101. The defendant contends
that the Commonwealth failed to prove that he shared Ridge's
intent to kill, or that he deliberately premeditated the
21
victims' deaths.
The evidence supported the inference that the defendant
shared Ridge's intent to kill the victims. See Commonwealth v.
Nolin, 448 Mass. 207, 217 & n.11 (2007). A request that a
coventurer kill the victims demonstrates the specific intent to
kill. See, e.g., Commonwealth v. Cintron, 435 Mass. 509, 515-
516 (2001) ("shouted [at the shooter] to kill 'that cabron'"),
overruled on other grounds by Commonwealth v. Hart, 455 Mass.
230 (2009). Here, the jury reasonably could find that the
defendant's statement that he would not do "any more time" was
intended to communicate that message. It was made after the
robbery had been accomplished, to a man he knew to be armed, and
in the presence of the only possible witnesses, one of whom had
already identified Ridge. Cf. Norris, 462 Mass. at 139 (where
defendant, in altercation with victim, stepped away and called
for help from man he knew to be armed, jury could infer intent
that victim be killed).
The evidence also suggested that the defendant made his
decision to kill "after a period of reflection." Gonzalez, 475
Mass. at 406. No particular length of time of reflection is
required to find deliberate premeditation, and the decision may
be made in only a few seconds. See Commonwealth v. Whitaker,
460 Mass. 409, 419 (2011). The jury can infer premeditation
from the nature of the attack. See id. The evidence in this
22
case suggested that after having subdued, bound, and robbed the
victims, the defendant urged his coventurer to kill them in
order to avoid detection. This demonstrated the necessary
sequence of thought to support a finding of deliberate
premeditation. Cf. Norris, supra at 139.
iii. Extreme atrocity or cruelty. The judge also properly
denied the defendant's motion for a directed verdict on the
theory of extreme atrocity or cruelty. To warrant a conviction
under this theory, the Commonwealth was required to prove that
the defendant knowingly participated in the killing, that he
intended to cause death or grievous bodily harm or engaged in an
act a reasonable person would know created a plain and strong
likelihood of death, and that the killing was committed with
extreme atrocity or cruelty. See, e.g., Commonwealth v. Chhim,
447 Mass. 370, 377 (2006). The defendant need not have intended
that the killing be extremely atrocious or cruel. See id. at
379. For the reasons discussed, supra, the evidence established
that the defendant knowingly participated in the killings with
the necessary mental state.
The jury reasonably could infer that both killings were
committed with extreme atrocity or cruelty. The evidence
suffices to warrant a finding of extreme atrocity or cruelty if
23
it establishes one or more of the so-called Cunneen factors.8
See, e.g., Commonwealth v. Linton, 456 Mass. 534, 546 & n.10
(2010), citing Commonwealth v. Cunneen, 389 Mass. 216, 227
(1983). In this case the evidence warranted finding at least
one such factor: a degree of consciousness and suffering on the
part of each victim. After the victims' home was broken into by
two or more people, the victims were immobilized and blinded
with duct tape, and remained in each other's presence. The
robbery continued for some time while one of the victims
attempted to bargain with the robbers. "From the evidence, the
jury reasonably could have inferred that, in those . . . minutes
before [their] death[s], the victim[s were] terrified."
Commonwealth v. Anderson, 445 Mass. 195, 202 (2005).
c. Court room closure. The defendant contended in his
motion for a new trial that the judge improperly closed the
court room to spectators during empanelment of the jury, and
that his trial counsel was ineffective for failing to object.
The motion judge, who was also the trial judge, held an
evidentiary hearing and made written findings of fact
8
The factors are: (1) whether the defendant was
indifferent to or took pleasure in the victim's suffering; (2)
the consciousness and degree of suffering of the victim; (3) the
extent of the victim's injuries; (4) the number of blows
inflicted on the victim; (5) the manner and force with which the
blows were delivered; (6) the nature of the weapon used; and (7)
the disproportion between the means used to cause death and
those employed. See Commonwealth v. Cunneen, 389 Mass. 216, 227
(1983).
24
determining that the defendant had not met his burden to
demonstrate that the court room had been closed.9 See
Commonwealth v. Cohen (No.1), 456 Mass. 94, 107 (2010).
We accept as true the motion judge's findings of fact
absent clear error. See Commonwealth v. Greineder, 458 Mass.
207, 225 (2010), vacated on other grounds, 567 U.S. 948 (2012),
S.C., 464 Mass. 580, cert. denied, 134 S. Ct. 166 (2013).
Special deference is due where, as here, the motion judge was
also the trial judge. See id. The defendant's motion depended
primarily on testimony from his wife that she saw a "do not
enter" sign on the court room door and that a court officer
prohibited her from entering.10 The judge was not required to
credit the wife's testimony, and the judge articulated the
specific reasons that she did not. See Commonwealth v. DePina,
476 Mass. 614, 622 (2017). We discern no error in the judge's
findings or in her ruling that the defendant failed to meet his
burden to demonstrate that the court room had been closed. The
defendant's motion for a new trial was properly denied.
d. Admission of out-of-court statements. Over objection,
9
The motion judge also found that the defendant had waived
the substantive issue of court room closure and that any
ineffective assistance was not prejudicial.
10
The defendant's further contention that a member of his
family was removed after passing a tissue to the codefendant is
not borne out by the trial transcript, which indicates some
discussion after the codefendant had been handed the tissue, but
not that anyone was removed from the court room.
25
the judge admitted a series of out-of-court statements made by
Ridge recounting the robbery that led to the victims' deaths and
implicating the defendant. The defendant contends that these
statements constituted inadmissible hearsay.
"We recognize an exception to the hearsay rule whereby
statements by joint venturers are admissible against each other
if the statements are made both during the pendency of the
cooperative effort and in furtherance of its goal" (quotations
omitted). Commonwealth v. Bright, 463 Mass. 421, 426 (2012),
quoting Commonwealth v. Braley, 449 Mass. 316, 319 (2007). See
also Commonwealth v. Winquist, 474 Mass. 517, 520-521 (2016).
The justification for this rule is two-fold. First, it derives
from an analogy between a criminal joint venture and a lawful
partnership. Joint venturers, like business partners, are each
"an agent for the other in all matters relating to the common
object." Bright, supra at 426, quoting Commonwealth v. Tivnon,
8 Gray 375, 381 (1857). Second, the rule "is buttressed by
significant policy" considerations. Commonwealth v. White, 370
Mass. 703, 712 (1976). During the pendency of a joint venture,
the interests of the joint venturers are sufficiently aligned so
as "to assure that their statements about one another will be
[at least] minimally reliable." Id.
To admit the statement of a joint venturer, the judge must
make a preliminary determination, based on a preponderance of
26
the evidence, other than the out-of-court statement itself, that
a joint venture existed between the declarant and the defendant
and that the statement was made in furtherance of that venture.11
Bright 463 Mass. at 426; Commonwealth v. Cruz, 430 Mass. 838,
844 (2000). This determination permits the statement to be
placed in front of the jury, but does not suffice for the jury
to consider it as bearing on the defendant's guilt. The jury
must first make their own independent determination, again based
on a preponderance of the evidence other than the statement
itself, that a joint venture existed and that the statement was
made in furtherance thereof. Bright, supra at 427, 432. We
review the judge's decision to place a joint venturer's
statement before the jury for abuse of discretion. See, e.g.,
Winquist, 474 Mass. at 521.
The defendant challenges Ridge's statements, contending
that neither prerequisite was met. He argues that the
independent evidence did not show the existence of a joint
venture with the defendant, and that the statements were, in any
event, not made in furtherance of any such venture.
i. Existence of a joint venture. As an initial matter,
the judge did not abuse her discretion in finding that the
11
Alternatively, the statement may be admitted
provisionally, subject to a motion to strike should the evidence
presented through the course of the Commonwealth's case fail to
establish the existence of a joint venture. Commonwealth v.
Bright, 463 Mass. 421, 426 n.9 (2012), and cases cited.
27
independent evidence demonstrated a joint venture between Ridge
and the defendant. On appeal, we consider the evidence in the
light most favorable to the Commonwealth, to determine whether
the declarant and the defendant knowingly participated in the
commission of a crime together with the requisite intent. See
Winquist, 474 Mass. at 521, quoting Bright, 463 Mass. at 435.
In this case, Condon, who had been incarcerated with the
defendant, testified that when he mentioned the killings in
Westwood, the defendant responded "it was the other guy [who]
shot him" while pointing to Ridge's unit and added that "nobody
planned on getting shot." This testimony establishes, by a
preponderance of the evidence, that the defendant and Ridge were
involved in a joint venture that resulted in the victims'
deaths. Having so determined, we consider each of the
challenged statements to determine whether they were made
during, and in furtherance of, that joint venture.
ii. Specific statements. The defendant objects to the
admission of a statement from Ridge to Trundley from "days"
before the killing. In it, Ridge purportedly revealed the
details of his planned robbery, including his intention to
involve a brother and sister as accomplices and to execute the
robbery between 8 and 10 P.M. on a rainy night. Second, the
defendant challenges testimony regarding a series of threats in
which Ridge is said to have warned Trundley not to speak to
28
police. The first such threat was made one week after the
killings, and the last one was made approximately one year after
the killings. Third, the defendant challenges Trundley's
testimony that Ridge made a statement implicating the defendant
in late fall of 1987. Trundley testified that when he called
Ridge for help dealing with a threat, Ridge offered to "call up
Rakesy" and clarified that "Rakesy" was "Jimmy Rakes." When
Trundley asked, "What's he gonna to do?" Ridge responded, "He's
the guy I did Westwood with." Finally, the defendant challenges
the admission of Ridge's statement to Condon when Condon was an
inmate with both Ridge and the defendant. In that statement,
made nearly fifteen years after the killings, Ridge asked Condon
to "tell Rakes that my end is tight."
A. Statements from Ridge to Trundley. I. Statement
before the killing. The defendant challenges the admission of
statements from Ridge to Trundley, made a few days before the
killing, arguing that they predate any joint venture. We reject
this contention, as "[m]atters surrounding the history of the
conspiracy, including statements of coconspirators, may be
admissible even if they predate the conspiracy." Commonwealth
v. McLaughlin, 431 Mass. 241, 248 (2000), citing Commonwealth v.
Rankins, 429 Mass. 470, 473 (1999). The Commonwealth is
entitled to "show the whole history of the conspiracy" beginning
with "preparations made by [the principal]" (citation omitted).
29
Commonwealth v. Borans, 379 Mass. 117, 147 (1979). Therefore,
statements probative of the declarant's intent to enter into a
joint venture with the defendant to commit a crime may be
admitted under the joint venture exception.12 McLaughlin, supra
at 248. See also Rankins, supra at 474 (statement two years
prior to killings in which declarant expressed "disdain for her
husband" [the victim] admissible in prosecution of coventurer as
"relevant to whether there was a later conspiracy"). Here, as
in Rankins, even if the joint venture had not yet begun, Ridge's
statement that he expected to be accompanied by a brother and
sister was relevant to proving the existence of a joint venture
in the near future.
II. Warnings to stay silent. We turn next to the series
of threats Ridge made to Trundley in an attempt to ensure his
silence. These threats were communicated at various times over
the year following the murders. The defendant contends that any
joint venture had concluded before these statements were made,
and therefore they cannot have been made in furtherance of the
joint venture.
12
Ridge's statement also was admissible as a statement of
the declarant's intent. "Statements, not too remote in time,
which indicate an intention to engage in particular conduct, are
admissible to prove the conduct was, in fact, put in effect."
Commonwealth v. Ortiz, 463 Mass. 402, 409 (2012), quoting
Commonwealth v. Avila, 454 Mass. 744, 767 (2009); Mass. G. Evid.
§ 803(3)(B) (2017). See Commonwealth v. Fernandes, 427 Mass.
90, 95 (1998) (statement of intent one week prior to crime
admissible).
30
"Although [the joint venture] exception to the hearsay rule
'does not apply [to statements made] after the criminal
enterprise has ended . . . [it] does apply where the joint
venturers are acting to conceal the crime that formed the basis
of their enterprise.'" Commonwealth v. Raposa, 440 Mass. 684,
689-690 (2004), quoting Commonwealth v. Angiulo, 415 Mass. 502,
519 (1993). See Bright, 463 Mass. at 436 (statements made after
fact "to encourage [a potential witness] not to disclose facts
related to the murder" admissible [quotation and citation
omitted]). In this case, the threats from Ridge to Trundley
"were attempts 'to conceal the crime in furtherance of the joint
venture,'" Bright, supra at 436, quoting Braley, 449 Mass. at
330, and therefore properly admitted.13
III. Statement naming and implicating the defendant.
Next, we turn to Ridge's naming of the defendant as "the guy I
did Westwood with." The defendant argues that this statement
was not made in furtherance of any coventure. He contends that
Ridge merely shared information regarding the crime with a third
party. While we have expressed skepticism that disclosing the
circumstances of a crime to a third party can be considered to
be in furtherance of the crime disclosed, in this case Trundley
13
As we pointed out in Bright, 463 Mass. at 437, absent
indication that the defendant had withdrawn from the joint
venture "it is of no consequence" that he was not involved in
the conversations.
31
was, himself, a part of the joint venture. He was aware of the
robbery, and helped in both the preparation for and concealment
of it. Cf. Bright, 463 Mass. at 436 n.21; Commonwealth v.
Colon-Cruz, 408 Mass. 533, 544 (1990).
Statements meant to ensure the silence of a coventurer, or
another involved in concealing the crime, are admissible as
furthering the joint venture. See Raposa, 440 Mass. at 690;
Commonwealth v. Hardy, 431 Mass. 387, 393-394 (2000), S.C., 464
Mass. 660, cert. denied, 134 S. Ct. 248 (2013). To be admitted,
the statement need not be necessary, or even important, to the
success or concealment of the joint venture, so long as it
advances the joint venture in some way. See United States v.
Ford, 839 F.3d 94, 106-107 (1st Cir. 2016). Cf. United States
v. Clark, 18 F.3d 1337, 1342 (6th Cir.), cert. denied, 513 U.S.
852 (1994) (statement to girl friend identifying coventurer
"induced her to conceal the crimes, to allow use of her
automobile to execute the robberies, and to allow use of her
home to plan the robberies," thereby furthering joint venture).
In this case, Ridge's offer of help, including his
identification of the defendant as a participant in the Westwood
robbery and killings, advanced the coventurers' shared goal of
concealing their crimes. It served to gain Trundley's loyalty,
and thereby, it was hoped, his silence. Trundley already knew
that Ridge and others had made their way into the victims' home
32
in an attempt to steal money and cocaine, and that when one of
the two victims recognized Ridge, he shot and killed both.14 To
evade detection, Ridge and his coventurers needed Trundley to
remain silent. To help ensure that silence, Ridge offered to
help Trundley confront an otherwise unrelated threat to safety.
Implicating the defendant in the Westwood murders was a
necessary part of the offer of assistance. Trundley had never
met and had no reason to trust the defendant. When Ridge first
offered the defendant's help, Trundley, apparently skeptical,
asked, "What's he gonna do?" By mentioning, in response, the
defendant's participation in an armed robbery and murder, Ridge
gave Trundley a reason to believe that the defendant was the
type of person who would be useful in confronting a potentially
violent situation. Consequently, the judge did not abuse her
discretion in finding the statement, in full, to be admissible.
B. Statement from Ridge to Condon in 2002. We turn
finally to Ridge's request to Condon, made almost fifteen years
after the crime, to "tell Rakes my end is tight."
To the extent the statement was hearsay,15 it falls within
14
While Trundley did not yet know the identities of the
other coventurers, even his limited knowledge posed a threat to
them. Police officers would be better able to identify the
coventurers if the officers knew the details of the crime and
Ridge's involvement. Therefore, all involved in the joint
venture shared a common interest in his silence.
15
The Commonwealth contends that the statement was an
operative statement, not offered for the truth of the matter
33
the exception for statements by a joint venturer. Typically,
statements deemed admissible as part of the concealment phase of
a joint venture have been made relatively close in time to the
commission of the crime. Winquist, 474 Mass. at 522-523.
However, "the relevant consideration is not whether the
statements of a joint venturer were made close in time to the
commission of a crime," but rather whether the attempt to
conceal was continuing. Id. at 523 (communications discussing
ways to neutralize potential witnesses demonstrates ongoing
effort to conceal two years after crime). Recalling the
reasoning behind the joint venture exception, we look to whether
the "joint venturers [continue to] share the commonality of
interests which is some assurance that their statements are
reliable." Id. at 522, quoting Colon-Cruz, 408 Mass. at 543.
In this case, the statement itself -- "tell Rakes my end is
tight" -- demonstrates that Ridge and the defendant "remained
actively engaged in an effort to conceal their . . . crimes."
Winquist, 474 Mass. at 523. The statement advanced that effort
by attempting to ensure that they would not testify against one
another, and by "sharing information" regarding the possible
testimony of others. Commonwealth v. Leach, 73 Mass. App. Ct.
758, 764 (2009) (incarcerated coventurers' discussion of need
asserted, and therefore not hearsay at all. No such limiting
instruction was given at trial.
34
for silence). See also Winquist, supra. Moreover, the
interests of the joint venturers remained fully aligned. Both
faced trials in which the strength of the Commonwealth's case
would turn on the willingness of the same set of witnesses to
testify, as well as the willingness of either coventurer to
testify against the other. See Colon-Cruz, 408 Mass. at 545;
Leach, supra. Contrast Commonwealth v. Santos, 463 Mass. 273,
291 (2012) (statement seeking to exculpate declarant by
inculpating defendant); White, 370 Mass. at 706, 710-711 (the
same).16
To be sure, in many cases the commonality of interests that
justify the joint venture hearsay exception may dissipate over
an extended period of time. In each instance, then, the judge
must make a careful and fact-intensive determination before
admitting a joint venturer's out-of-court statements, and all
the more so when a significant period of time had passed between
the crime and the statement. See Winquist, 474 Mass. at 523.
16
Dicta suggesting that a joint venture ends once the
declarant has been arrested and incarcerated is not to the
contrary. See Commonwealth v. Santos, 463 Mass 273, 294 (2012);
Commonwealth v. Angiulo, 415 Mass. 502, 519-520 (1993). Such
dicta, never the basis of any decision, is predicated on the
view that after apprehension, the commonality of interests among
joint venturers gives way to self-interest. See Commonwealth v.
Winquist, 87 Mass. App. Ct. 695, 703-704 (2015), S.C., 474 Mass.
517 (2016). This view has no application where, as here, the
statement itself demonstrates that the declarant and the
defendant continue to cooperate to conceal the crime in
preparation for trial. See Commonwealth v. Leach, 73 Mass. App.
Ct. 758, 764 (2009).
35
That was done here. In light of the specifics of this case, the
judge did not abuse her discretion when she determined that
Ridge and the defendant were continuing to work together
actively to conceal their crime when Ridge spoke to Condon in
2002.17
e. Records of prior incarceration. The Commonwealth moved
to introduce certain Department of Correction (DOC) records
demonstrating the defendant's prior incarceration. He had been
paroled seventeen days prior to the killings. It was the
Commonwealth's theory that after the defendant said he "wasn't
about to do any more time," Ridge killed the victims so they
could not testify against the defendant. The judge, after a
lengthy sidebar conference with counsel, allowed the
introduction of the defendant's certificate of parole, the
defendant's so called "VAX sheet," which is a computerized list
that details an inmate's movement amongst various correctional
institutions while in custody, and a page from the defendant's
booking sheet including photographs. The defendant concedes
that some documentation of his prior incarceration could have
been admitted. He contends, however, that a single document
17
The United States Supreme Court, in Grunenwald v. United
States, 353 U.S. 391, 402 (1957), noted that extending the life
of a joint venture could practically eliminate the statute of
limitations in cases charging conspiracy. This concern has no
application in this case, as there is no statute of limitations
for murder. See Commonwealth v. Winquist, 474 Mass. 517, 525
(2016).
36
showing his release date would have been sufficient.
Evidence of a defendant's prior incarceration may be
admitted if it is offered for a purpose other than showing the
defendant's bad character or propensity to commit a crime, and
if its probative value outweighs the risk of unfair prejudice.
See, e.g., Commonwealth v. Crayton, 470 Mass. 228, 249 n.27
(2014); Mass. G. Evid. § 404 (b) (2017). The judge admitted the
DOC records to show the defendant's identity and the motive for
the killing, i.e., the defendant did not want to be sent back to
prison for his participation in an armed robbery. See
Commonwealth v. Brown, 462 Mass. 620, 628 (2012); Commonwealth
v. Barbosa, 457 Mass. 773, 793-794 (2010), cert. denied, 563
U.S. 990 (2011). She carefully reviewed the documents proffered
by the Commonwealth, and ordered significant redaction. Even if
further redactions may have been desirable, we see nothing in
the records admitted that warrants reversal.
The inmate history and certificate of parole were both
admitted to show the defendant's release date, and therefore his
motive for the killing. To the extent such duplication was
unwarranted, the admission of both documents did not prejudice
the defendant, as we are confident their admission "did not
influence the jury, or had but very slight effect." Braley, 449
Mass. at 326, quoting Commonwealth v. Flebotte, 417 Mass. 348,
353 (1994). Beyond the facts of the defendant's incarceration
37
and release, information the defendant concedes could properly
have been placed before the jury, the documents mentioned the
length of his sentence, the institutions in which he served that
sentence, and the conditions of parole. None of this
information was particularly inflammatory. Moreover, we presume
the jury followed the judge's detailed limiting instruction that
the evidence was not to be used to infer bad character or
criminal propensity. See, e.g., Brown, 462 Mass. at 628 (2012)
(discussing value of limiting instruction when evidence of prior
incarceration is admitted). See also Commonwealth v. Donahue,
430 Mass. 710, 718 (2000) (limiting instruction usually renders
improperly admitted evidence harmless).
The booking sheet, including photographs, was properly
admitted to show that the person referenced in the other
documents was the defendant. Therefore, it was appropriate for
the purpose of identification. Moreover, there is little
prejudicial about the booking sheet beyond the admissible fact
that the defendant had previously been incarcerated. Cf.
Commonwealth v. McCowen, 458 Mass. 461, 478 (2010) (evaluating
prejudice stemming from prior bad acts evidence "in the context
of the trial"); Commonwealth v. Bonds, 445 Mass. 821, 835 (2006)
(evaluating prejudice "[i]n light of the properly admitted"
evidence).
f. Prosecutor's closing argument. The defendant claims
38
three errors in the prosecutor's closing argument: that he
improperly appealed to jurors' emotions, that he impermissibly
vouched for the credibility of a Commonwealth witness, and that
he argued facts not in evidence. We consider each in turn.
i. Appeal to emotion. The prosecutor in his closing
argument related the last moments of one of the victims:
"[Schlosser] can't see what's going on, he's got that duct tape
over his face, but he knows what's coming next. He puts his
hands up in a defensive position, in desperation, maybe as he
begs for his life. In desperation he puts his hands up." The
defendant argues that this was an impermissible appeal to the
jurors' emotions.
The Commonwealth charged the defendant with Schlosser's
murder on a theory of extreme atrocity or cruelty. Schlosser's
emotional response was relevant, and the Commonwealth was
entitled to argue it in closing. See Commonwealth v. Barros,
425 Mass. 572, 581 (1997). See also Commonwealth v. Murphy, 426
Mass. 395, 402 (1998) (victim's emotional suffering relevant to
extreme atrocity or cruelty). The brief reference to his mental
suffering, relevant to an issue being tried, was presented in a
relatively straightforward manner, and "[t]he prosecutor . . .
did not . . . dwell on the potentially sympathetic material."
Commonwealth v. Evans, 439 Mass. 184, 195, cert. denied, 540
U.S. 923, and cert. denied, 540 U.S. 973 (2003). Compare Bois,
39
476 Mass. 15, 34 (2016) (five references to defendant as the
"monster[] that come[s] out at night" and prosecutor crying by
end of closing); Commonwealth v. Santiago, 425 Mass. 491, 494-
495 (1997), S.C., 427 Mass. 298 and 428 Mass. 39, cert. denied,
525 U.S. 1003 (1998) (seven references in closing to victim's
pregnancy in case not charging extreme atrocity or cruelty).
ii. Vouching. Defense counsel, in his closing, frequently
argued that Trundley was not to be believed because he was a
"drug dealer, a liar, and a thief."18 The prosecutor countered
by arguing:
"Now why would Kevin Trundley make up that portion of
the statement? When Ridge finally tells Kevin Trundley who
was with him, what motive does Kevin Trundley have against
this man? He knew who he was; he had seen him around South
Boston before. He had seen him around the same area as
James Ridge before. He doesn't even really know him. Does
he have any motive to come before you and implicate him,
other than the truth? That's for you to decide, ladies and
gentlemen. There is no reason why he would say 'Jimmy
Rakes was the name given to me by James Ridge' if it wasn't
the true."
18
Defense counsel began his closing argument, a bookend to
his very similar opening statement, as follows: "A drug dealer,
a liar, and a thief. Kevin Trundley is all of those things
wrapped up in one phony package, propped up on the stand to sell
you a bill of goods. He's a drug dealer, he's a liar, and he's
a thief. . . . [H]e's trying to steal [the defendant's]
liberty. He's trying to steal from you a true verdict. He is a
drug dealer, he is a liar, and he is a thief." Much of the rest
of the closing argument continued in this vein. Counsel
concluded by telling the jury "you won't follow what a drug
dealer, a liar, and a thief is asking you to do. You won't let
him steal his way out of responsibility for whatever happened
there, you won't let him steal a true verdict from you folks,
and you won't let him steal this man's liberty."
40
A "prosecutor may marshal the evidence in closing argument
to 'urge the jury to believe the government witnesses.'"
Commonwealth v. Polk, 462 Mass. 23, 39 (2012), quoting
Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). This is
especially so when defense counsel has attacked the credibility
of a Commonwealth witness. In such cases, the prosecutor may
invite the jury to consider whether that witness had any motive
to lie. See Polk, supra at 39-40; Commonwealth v. Smith, 450
Mass. 395, 408, cert. denied, 555 U.S. 893 (2008). While the
prosecutor may argue on the basis of the evidence that a witness
should be believed, he or she may not imply "special knowledge
by which [he or she] can verify the witness's testimony."
Commonwealth v. Hardy, 431 Mass. at 396-397, quoting
Commonwealth v. Ciampa, 406 Mass. 257, 265 (1989). The
prosecutor did not suggest personal knowledge or exceed the
bounds of proper argument here; instead, he provided the jury
with reasons to credit the account of a key witness. We discern
no error.
iii. Facts not in evidence. Closing argument must be
limited to discussion of the evidence presented and the
reasonable inferences that can be drawn from that evidence.
Bois, 476 Mass. at 32, quoting Commonwealth v. Carriere, 470
Mass. 1, 22 (2014). Counsel may, however, zealously argue in
favor of those inferences favorable to his or her case. Bois,
41
supra at 32, quoting Carriere, supra. The inferences for which
counsel argues need not be necessary, or inescapable; they only
need be reasonable and possible. See, e.g., Commonwealth v.
Jones, 432 Mass. 623, 628 (2000); R.W. Bishop, Prima Facia Case,
§ 53.134 n.5 (5th ed. 2005).
The defendant contends that several statements made by the
prosecutor went beyond the evidence and the reasonable
inferences. First, the prosecutor suggested that no
incriminating fingerprints or DNA were left in the house because
the perpetrators of the killings wore gloves. While this
statement approached the fine line separating inference from
speculation, see Commonwealth v. Kozec, 399 Mass. 514, 517
(1987), it was nonetheless sufficiently tethered to the evidence
to be permissible. There was testimony that Ridge had, on other
occasions, used gloves and WD-40 to conceal his fingerprints
while loading a firearm. There also was evidence that he kept
items he used for this task in a bag similar to the one with
which he was seen the night of the murders. From this, it was
not "wholly implausible" to infer that Ridge used gloves for the
same purpose on the evening of the killings and convinced his
compatriot to do the same.19 Commonwealth v. Best, 23 Mass. App.
Ct. 943, 944 (1986). Cf., e.g., Bois, 476 Mass. at 32-33 (where
19
There was testimony that wearing gloves would both limit
the deposit of deoxyribonucleic acid (DNA) at the scene and
prevent fingerprints.
42
person in room adjacent to victim's bedroom did not wake due to
noise, permissible inference that victim encountered defendant
elsewhere in home); Commonwealth v. Semedo, 456 Mass. 1, 13
(2010) (where defendant shopped at store where victim worked,
permissible inference that they had interacted before).
Second, the prosecutor said that the robbers "asked
[Schlosser], having ripped that [duct] tape off his mouth,
'Where's the rest of [the money and cocaine]?'" The marks on
Schlosser's face, the crumpled duct tape on the coffee table
next to him, and Ridge's references to speaking with Schlosser
support the inference that at some point the duct tape over
Schlosser's mouth had been removed to talk to him. The
hypothetical dialogue presents a closer question. "[C]ounsel
may present an argument by dramatizing it in imaginary
dialogue," but that dialogue must remain "grounded in the
evidence" [citations omitted]. Commonwealth v. Pope, 406 Mass.
581, 587 (1990). There was evidence that the robbers intended
to steal money and cocaine, that they did not find as much as
they had hoped, and that Schlosser pleaded with them for a
chance to get more money before being killed. From this, it
could fairly be inferred that Ridge demanded more money and
cocaine from the victim.
In any event, even if the prosecutor's argument went too
far, we are confident that it did not have an impact on the
43
verdict.20 Closing argument is argument, not evidence, and
jurors are presumed to be capable of discounting excessive
claims. Kozec, 399 Mass. at 517. Moreover, the judge in this
case directly instructed the jurors not to credit statements
made by counsel if such statements conflicted with the jurors'
own memory of the evidence.21
g. Reasonable doubt instruction. The defendant argues
that the judge's instruction on reasonable doubt diminished the
Commonwealth's burden of proof. The judge instructed the jury,
"The Commonwealth is not required to prove the case to an
absolute, mathematical certainty. Mathematical certainty is
that level of certainty that you have if you add two and two and
arrive at four. The Commonwealth is not required to prove its
20
The parties dispute whether the defendant's objections to
the closing argument were properly preserved. Even reviewing
under the more searching standard -- prejudicial error -- we see
no basis for reversal. See, e.g., Commonwealth v. Akara, 465
Mass. 245, 263 (2013).
21
We discern no merit in the defendant's remaining claims
of improper argument. First, the defendant contends that no
evidence supported the prosecutor's claim that "more than one"
person was involved in subduing the victims. Trundley, however,
testified that Ridge told him that "they" subdued the victims.
Moreover, it would be reasonable to infer that multiple people
were necessary to subdue and bind two adult victims. Second,
Trundley's testimony that Ridge told him of a struggle over
Schlosser's rifle was sufficient for the prosecutor to include
this detail in closing argument. Third, the prosecutor's
suggestion that the victims were killed because they were
witnesses to the robbery was little more than a reformulation of
Ridge's statements that he killed the victims because one
recognized him and that he did so to prevent the defendant from
"do[ing] any more time."
44
case to an absolute or mathematical certainty, but it must prove
each and every element of the charge beyond a reasonable
doubt."22 This instruction correctly stated the law, and
22
The reasonable doubt instruction in full was: "The third
important principle that applies in all criminal cases is the
standard of proof beyond a reasonable doubt. I've told you --
I've told you that the burden is on the Commonwealth to prove
beyond a reasonable doubt that the defendant is guilty of the
charges made against him.
"So what is proof beyond a reasonable doubt? The term is
often used and probably pretty well understood, but it is not
easily defined. Proof beyond a reasonable doubt does not mean
proof beyond all possible doubt, for everything in the lives of
human beings is open to some possible or imaginary doubt. A
charge is proved beyond a reasonable doubt, if, after you have
compared and considered all of the evidence, you have in your
minds an abiding conviction, to a moral certainty, that the
charge is true.
"I've told you that every person is presumed to be innocent
unless and until he is proved guilty, and that the burden of
proof is on the prosecution. If you evaluate all of the
evidence and you still have a reasonable doubt remaining, the
defendant is entitled to the benefit of that doubt and must be
acquitted.
"It is not enough for the Commonwealth to establish a
probability, even a strong probability, that the defendant is
more likely to be guilty than not guilty. That is not enough.
Instead, the evidence must convince you of the defendant's guilt
to a reasonable and moral certainty, a certainty that convinces
your understanding and satisfies your reason and judgment as
jurors who are sworn to act conscientiously on the evidence.
That is what we mean by proof beyond a reasonable doubt.
"The Commonwealth is not required to prove the case to an
absolute, mathematical certainty. Mathematical certainty is
that level of certainty that you have if you add two and two and
arrive at four. The Commonwealth is not required to prove its
case to an absolute or mathematical certainty, but it must prove
each and every element of the charge beyond a reasonable doubt.
45
mirrored, nearly verbatim, instructions we have previously
upheld against constitutional challenge.23 In several cases, we
have explicitly approved of an instruction contrasting the
certainty necessary for a conviction with the greater certainty
of simple arithmetic. See, e.g., Commonwealth v. O'Brian, 445
Mass. 720, 731, cert. denied, 549 U.S. 898 (2006) ("[t]he
Commonwealth is not required to prove the case to a mathematical
certainty. Mathematical certainty is that level of certainty
you'd have if you add ten and ten at arrive at twenty");
Commonwealth v. Mack, 423 Mass. 288, 290 n.5 (1996) ("[t]he
Commonwealth is not required to prove the case to a mathematical
certainty. Mathematical certainty is that level of certainty
that you will have if you add two and two and arrive at four").
There was no error in giving the same instruction in this case.
h. Relief pursuant to G. L. c. 278, § 33E. We have
carefully reviewed the entire record, pursuant to our duty under
G. L. c. 278, § 33E. We see no reason to set aside the verdicts
or to reduce the degree of guilt.
"Now that does not mean that every fact about which there
is testimony in this case must be proven to that standard. It
is the elements of the crime charged that must be proven beyond
a reasonable doubt, and I will tell you what those are shortly."
23
Approximately nine years after trial in this case, we
mandated a standard reasonable doubt instruction in the exercise
of our supervisory authority. Commonwealth v. Russell, 470
Mass. 464, 477-478 (2015). The decision in Russell was not
retroactive and has no application here. See id. at 478-479.
46
Judgments affirmed.