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SJC-12007
COMMONWEALTH vs. ETNID LOPEZ.
Bristol. January 10, 2020. - August 20, 2020.
Present: Gants, C.J., Gaziano, Budd, Cypher, & Kafker, JJ.
Homicide. Joint Enterprise. Evidence, Joint venturer,
Authentication, Admissions and confessions, Voluntariness
of statement. Due Process of Law, Police custody.
Constitutional Law, Admissions and confessions, Waiver of
constitutional rights by juvenile, Voluntariness of
statement. Practice, Criminal, Admissions and confessions,
Voluntariness of statement, Instructions to jury,
Assistance of counsel, Postconviction relief, Capital case.
Indictment found and returned in the Superior Court
Department on October 1, 2010.
A pretrial motion to suppress evidence was heard by D.
Lloyd Macdonald, J.; the case was tried before Robert J. Kane,
J.; and motions for a new trial and for postconviction
discovery, filed on June 30, 2017, were considered by Thomas F.
McGuire, Jr., J.
Elizabeth Doherty for the defendant.
Tara L. Johnston, Assistant District Attorney, for the
Commonwealth.
2
BUDD, J. The defendant, Etnid Lopez, was convicted of
murder in the first degree on a theory of extreme atrocity or
cruelty in connection with the stabbing death of Tigan
Hollingsworth. We have consolidated the defendant's direct
appeal with his appeals from the denial of his motions for a new
trial and for postconviction discovery, and we now affirm.
After a full consideration of the entire record, we further
decline to grant extraordinary relief pursuant to G. L. c. 278,
§ 33E.
Background. We present the facts in the light most
favorable to the Commonwealth, reserving certain details for
discussion of specific issues.
At approximately 11:30 P.M. on June 25, 2010, the
defendant, his girlfriend Kayla Lawrence, Jared Brown-Garnham
(Garnham), and Michelle Torrey drove to a convenience store in
Taunton. The defendant wore a white T-shirt, and Garnham wore
dark clothing with a blue bandana. Upon arrival, the defendant
entered the convenience store and Lawrence stood in the parking
lot with Garnham. While waiting for the defendant, Lawrence saw
the victim and exchanged heated words with him. Lawrence was
familiar with the victim and had witnessed him, along with a
group of other people, "jump" the defendant's brother, Jean
3
Carlos Lopez (Jean),1 a few years earlier. Soon thereafter, the
defendant came out of the store and, with a knife in his hand,
began chasing the victim around the parking lot. Torrey got out
of her vehicle and attempted to restrain the defendant, holding
him back by his arms, but the defendant eventually broke free
and continued to chase the victim. During this time, Jean and
the defendant's uncle, Erving Cruz, drove into the parking lot.
As Cruz got out of the vehicle, he pointed at the victim and
shouted, "Is that him? Is that him? Get him." Cruz and Jean
joined the defendant in chasing the victim around the parking
lot. The victim then ran out of the parking lot and down the
street.
Two witnesses, Brittany Machado and Matthew D'Alessandro,
observed the events at the convenience store parking lot as they
waited in their vehicle at a red light directly across the
intersection. Both witnessed the victim flee down the street
chased by two men: one in a white T-shirt, and the other, who
had just got out of a vehicle in the parking lot, in a black
tank top and baggy black clothes. Both witnesses observed the
chase as they drove parallel to the three men. As they made a
left turn into their driveway, the victim and his two pursuers
almost hit their car. D'Alessandro witnessed the three males
We refer to Jean Carlos Lopez by his first name because he
1
shares a last name with the defendant.
4
turn back toward the convenience store before turning down a
driveway one house down the street.
As Machado parked the car, they both heard the sound of the
chain-link fence to their left clanging. D'Alessandro then saw
the victim in his neighbor's back yard, illuminated by a motion-
activated spotlight, followed by the man in the white T-shirt
and the man in the black tank top. The two men then attacked
the victim, holding him and hitting him. As the victim fell to
the ground, D'Alessandro heard the man in the black tank top
ask, "Did you get him? Did you get him?" The man in the white
T-shirt responded, "Yes I got him." The two men then jumped
over the fence and fled.2
The victim suffered from thirteen stab wounds, several of
which penetrated his chest cavity. His cause of death was
collapsed lungs and massive blood loss.
The defendant's theory at trial was that Garnham was the
killer. He relied primarily on Lawrence's testimony that
Garnham had participated in the attack and left the back yard "a
few seconds" after the defendant. Lawrence further testified
that following the stabbing, Garnham threatened to kill Lawrence
2 In separate trials, Erving Cruz was convicted of murder in
the second degree in connection with the stabbing death.
Commonwealth v. Cruz, 97 Mass. App. Ct. 1102 (2020). Jean was
convicted of murder in the first degree; however, his conviction
subsequently was overturned on appeal. Commonwealth v. Lopez,
484 Mass. 211 (2020).
5
and her daughter, just as he had killed the victim, if Lawrence
mentioned his name to police. The defendant also called
Garnham's brother, and the brother's fiancée, both of whom
testified that Garnham admitted being involved in the attack.
Discussion. The defendant argues that the statements he
made to police, text messages sent after the stabbing, and
statements attributed to Cruz improperly were admitted in
evidence. He also contends that the trial judge erred in
declining to instruct the jury on involuntary manslaughter.
Finally, he argues that his motion for a new trial was denied
improperly.
1. Coventurer statements. At trial, over the defendant's
objection, D'Alessandro testified that, as the defendant and
Cruz3 pursued the victim around the convenience store parking
lot, Cruz shouted, "Is that him? Is that him? Get him." Soon
thereafter, from his driveway, D'Alessandro observed the
defendant and Cruz in the back yard of the house next door
repeatedly striking the victim. D'Alessandro testified that, as
the victim fell to the ground, he heard the individual later
identified as Cruz ask, "Did you get him? Did you get him?" and
3 Matthew D'Alessandro did not identify the defendant or
Cruz; rather, he described observing and hearing a man wearing a
white T-shirt and a man wearing a black tank top. Kayla
Lawrence identified these individuals as the defendant and Cruz,
respectively.
6
heard the other individual, later identified as the defendant
respond, "Yes I got him." D'Alessandro then saw the two
attackers climb the chain-link fence and flee the scene. The
defendant contends that the judge erred in admitting Cruz's
statements under the hearsay exemption for statements made by a
coventurer.4 We perceive no error.
It is well established that "[o]ut-of-court statements by
joint venturers are admissible against the others if the
statements are made during the pendency of the criminal
enterprise and in furtherance of it." Commonwealth v. Winquist,
474 Mass. 517, 520-521 (2016), quoting Commonwealth v. Burton,
450 Mass. 55, 63 (2007). See Mass. G. Evid. § 801(d)(2)(E)
(2020). Before admitting a coventurer's statement, a judge must
make a preliminary determination that the Commonwealth has
established by a preponderance of the evidence, other than the
out-of-court statement itself, that a joint venture existed
4 The defendant does not challenge the admission of Cruz's
statements on the ground that they were testimonial statements
the admission of which violated the defendant's right to
confront witnesses against him. See generally Crawford v.
Washington, 541 U.S. 36, 59 (2004). Even if he had made this
argument, we have recognized that, "[g]enerally speaking, the
statements of joint venturers are the type of remarks that are
deemed nontestimonial under Crawford." Commonwealth v.
Winquist, 474 Mass. 517, 521 n.6 (2016), and cases cited. See
Commonwealth v. Wardsworth, 482 Mass. 454, 464 (2019)
("Testimonial statements are those made with the primary purpose
of 'creating an out-of-court substitute for trial testimony'"
[citation omitted]).
7
between the declarant and the defendant, and that the statement
was made in furtherance of that venture. See Commonwealth v.
Rakes, 478 Mass. 22, 37 (2017); Winquist, supra at 521. If the
judge finds that the Commonwealth has met this preliminary
burden, the statement may be admitted, but the judge must
instruct the jury that they may only consider the statement as
evidence of guilt if the jury 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." Rakes,
supra. On appeal, we review the judge's preliminary
determination that a coventurer statement is admissible for an
abuse of discretion. Id. In doing so, "we view the evidence
presented to support the existence of a joint venture in the
light most favorable to the Commonwealth, recognizing also that
the venture may be proved by circumstantial evidence."
Commonwealth v. Bright, 463 Mass. 421, 435 (2012).
Here, the judge made the requisite preliminary findings at
sidebar before admitting each statement.5 The judge also
5 The judge made preliminary findings based on the evidence
already admitted before the Commonwealth sought to elicit the
challenged testimony. Alternatively, "[o]ut-of-court statements
may generally 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).
8
provided appropriate instructions to the jury regarding how to
consider the statements both prior to their admission in
evidence and in his final charge.6 The judge did not abuse his
discretion in determining that the Commonwealth had established,
by a preponderance of the other evidence presented, that Cruz's
statements were made during the pendency of a joint venture with
the defendant and in furtherance of that joint venture.
"A joint venture is established by proof that two or more
individuals 'knowingly participated in the commission of the
crime charged . . . with the intent required for that offense.'"
Winquist, 474 Mass. at 521, quoting Bright, 463 Mass. at 435.
There was ample evidence, independent of Cruz's statements, that
the defendant and Cruz were engaged in a joint venture that led
to the victim's death. D'Alessandro, Machado, and Lawrence all
testified that the defendant was chasing the victim around the
convenience store parking lot and shouting expletives at the
victim when Cruz arrived, got out of the car, pointed at the
victim, and immediately joined the chase. The same witnesses
also testified that the defendant and Cruz pursued the victim
down the street and into a back yard several houses away from
6 Cruz's statements also could have been admitted as
nonhearsay for some purpose other than the truth of the matter
asserted; however, the judge here did not instruct the jury to
consider Cruz's statements for some nontruth purpose. See
Wardsworth, 482 Mass. at 463.
9
the convenience store. D'Alessandro, Lawrence, and another
witness testified that both the defendant and Cruz struck the
victim multiple times in the back yard, and then fled shortly
after the victim fell to the ground. This testimony
establishes, by a preponderance of the evidence, that the
defendant and Cruz "were involved in a joint venture that
resulted in the victim['s] death." Rakes, 478 Mass. at 38.
In addition, each of Cruz's statements was made during, and
in furtherance of, the joint venture. At the time of Cruz's
first statement, he was just beginning to join the defendant in
pursuing the victim. The primary ends of the joint venture --
that is, catching and attacking the victim -- had not yet been
achieved. In pointing at the victim and saying, "Is that him?
. . . Get him," Cruz furthered the venture by seeking to confirm
the target, as evidenced further by Cruz immediately joining the
chase.
As for Cruz's second statement in the back yard, the
defendant contends that it was inadmissible as a statement in
furtherance of the joint venture because the attack had been
completed by that time. We disagree. "In essence, the inquiry
to determine whether a statement was made during the pendency of
a criminal enterprise and in furtherance of it 'focuses not on
whether the crime has been completed, but on whether a joint
venture was continuing.'" Winquist, 474 Mass. at 522-523,
10
quoting Commonwealth v. Stewart, 454 Mass. 527, 537 (2009).
Cruz's statements were made mere moments after the stabbing; he
sought to confirm whether the defendant had "gotten" the victim,
and when the defendant confirmed that he had,7 the two fled the
scene together. See Bright, 463 Mass. at 436-437 ("Efforts on
the part of a joint venturer to . . . effect an escape warrant
the inference that the joint venture continued . . .");
Commonwealth v. Freeman, 430 Mass. 111, 117 (1999) ("the
statements were made when the cooperative effort was in
progress, after the coventurers retreated immediately following
the crime"). The defendant's and Cruz's interests remained
aligned when Cruz made the challenged statements. See Rakes,
478 Mass. at 41 (continued "commonality of interests" indicates
ongoing venture [citation omitted]). Cruz's statements were
admitted properly.
2. Text messages. After a voir dire of Lawrence, the
judge allowed the Commonwealth to present evidence of three
incriminating text messages that originated from Lawrence's
cellular telephone (cell phone) that purportedly were authored
by the defendant and sent to Garnham one day after the stabbing.8
7 The defendant's own statement was not hearsay; it was
admissible as a statement of a party opponent. See Bright, 463
Mass. at 435; Mass. G. Evid. § 801(d)(2)(A) (2020).
8 The three text messages are as follows:
11
The defendant argues that the admission of these messages was
error because they were not properly authenticated. We
disagree.
Before a communication may be admitted in evidence, the
judge must make a determination regarding its authenticity; that
is, the judge must determine whether there exists sufficient
evidence that, if believed, a reasonable jury could find by a
preponderance of the evidence that the communication in question
is what it is purported to be. Commonwealth v. Purdy, 459 Mass.
442, 447 (2011). See Mass. G. Evid. § 901(a). Authentication
may be accomplished by way of direct or circumstantial evidence,
"including its '[a]ppearance, contents, substance, internal
patterns, or other distinctive characteristics.'" Purdy, supra
at 448, quoting Mass. G. Evid. § 901(b)(1), (4).
Here, evidence of the contents of the messages, including
identifying information and other corroborating evidence,
together with evidence of the originating device, was sufficient
to authenticate the communications as having been authored by
11:19 A.M.: "ayo itz ez da story is we saw dude we chased
hym he got away n 1 hour later we got a call sayin he died
iight i dont want every1 gettin in troble 4 my shyt"
11:26 A.M.: "iight lil 1 is goin first to c wut happenz
wyth her n shyt"
11:32 A.M.: "wurt i just told yu we try chasin hym n he
got way then lyke an hour later they called sayin he got
stabbed."
12
the defendant. The first text message begins, "ayo itz ez."
Based on Lawrence's testimony during the voir dire, and the
defendant's statement to police, "EZ" was the defendant's
nickname. In addition, the second message refers to "lil 1,"
which Lawrence indicated was the defendant's nickname for her.
See Commonwealth v. Johnson, 470 Mass. 300, 317 (2014).
Although evidence of identifying information within a
communication is not sufficient by itself to authenticate the
communication, see Purdy, 459 Mass. at 450, there were other
confirmatory circumstances that pointed to the defendant as the
author, see Commonwealth v. Webster, 480 Mass. 161, 170 (2018).
For example, one of the text messages suggested to Garnham that
the "story" they could present was "we saw dude we chased hym he
got away n 1 hour later we got a call sayin he died."
Consistent with this message, the defendant told police that,
although he chased the victim around the parking lot, the victim
got away. The text messages and the defendant's admissible
statements to police sufficiently mirror one another to serve as
a confirming circumstance that the defendant authored the
messages. See Johnson, 470 Mass. at 317-318.
Finally, the text messages originated from Lawrence's cell
phone. Lawrence and the defendant lived together, and Lawrence
testified that the defendant had access to her cell phone when
the text messages were sent. See Johnson, 470 Mass. at 317
13
(electronic mail sent from account shared by married defendants
authenticated due to use of typical signature and other
confirming circumstances).
Taken together, the confirming circumstances surrounding
the text messages presented by the Commonwealth provided
sufficient evidence for a reasonable jury to find by a
preponderance of the evidence that the text messages were
authored by the defendant. Thus, the judge did not err in
finding that the messages were admissible.
3. Statements to investigators. At trial the Commonwealth
presented a redacted version of the videotaped interrogation of
the defendant. The defendant contends that his statements were
improperly admitted because his Miranda waiver was involuntary,
as were the statements he made thereafter.9
a. Miranda. i. Custody. "The requirements of Miranda
. . . are not triggered unless the interrogation is custodial,
and a defendant's failure to receive or understand Miranda
warnings, or police failure to honor Miranda rights, does not
result in suppression of a voluntary statement made in a
noncustodial setting." Commonwealth v. Hilton, 443 Mass. 597,
9 During the interview the defendant claimed that, although
he chased the victim around the convenience store parking lot
for a short time, he decided to stop running when the victim
left the convenience store parking lot and continued to run down
the street.
14
608-609 (2005), S.C., 450 Mass. 173 (2007). See Commonwealth v.
Libby, 472 Mass. 37, 40 (2015). "Custodial interrogation is
'questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.'" Commonwealth v.
Kirwan, 448 Mass. 304, 309 (2007), quoting Commonwealth v. Jung,
420 Mass. 675, 688 (1995).
The parties disagree as to whether the defendant was in
custody during the interview. The question turns "primarily on
the objective circumstances of the interrogation, and not on the
subjective views of either the interrogating officers or the
person being questioned." Commonwealth v. Sneed, 440 Mass. 216,
220 (2003). Circumstances that may shed light on the custody
analysis include, but are not limited to, (1) the place of the
interrogation; (2) whether the officers have conveyed to the
person being questioned a belief or opinion that he or she is a
suspect; (3) the nature of the interrogation; and (4) whether
the suspect was free to end the interview. See Commonwealth v.
Medina, 485 Mass. 296, 300-301 (2020) (four-factor Groome test
provides framework but does not limit court's obligation to
consider all relevant circumstances); Commonwealth v. Groome,
435 Mass. 201, 211-212 (2001). Here, based on the totality of
15
the circumstances, we conclude that the defendant was in custody
during the interrogation.10
The closed-door questioning took place in a seven foot by
seven foot interview room at the police station. See
Commonwealth v. Bookman, 386 Mass. 657, 660 (1982), citing
Commonwealth v. Alicea, 376 Mass. 506, 513 (1978) ("We recognize
that there is a particular coercive element inherent in an
interview at a police station"). See also Commonwealth v. Baye,
462 Mass. 246, 254 (2012) (interrogation custodial where, among
other factors, defendant interrogated for two hours in
windowless room at police station); Commonwealth v. Magee, 423
Mass. 381, 385 (1996) (interrogation custodial where, among
other factors, defendant interviewed in closed room at police
station).
The officers explicitly told the defendant that he was not
in custody, and that he was considered a witness rather than a
10The defendant also argues that he was transported
involuntarily to the police station. We do not agree. The
judge who heard the motion to suppress found that two police
officers arrived at the defendant's home at approximately 10:30
A.M. and informed the defendant and his mother that they wanted
to bring the defendant to the police station for questioning.
Although the defendant's mother, whose primary language is
Spanish, testified at the hearing on the motion to suppress that
the officers informed her that the defendant was required to
accompany them, the judge found that the officers gave the
defendant an option, and that he voluntarily agreed to accompany
them to the station. This finding is not clearly erroneous.
See Commonwealth v. Woollam, 478 Mass. 493, 505 (2017), citing
Commonwealth v. Tremblay, 460 Mass. 199, 205 (2011).
16
suspect; however, despite maintaining a conversational tone, the
officers asked him pointed questions from the beginning about
where he was and what he was doing on the night in question.
That is, the focus of the questioning was the defendant's own
actions, rather than his observations of what other people were
doing.11 See Magee, 423 Mass. at 385 (interrogation custodial
where, among other things, questioning centered on defendant's
potential criminal involvement). Contrast Commonwealth v.
Amaral, 482 Mass. 496, 501-502 (2019) (defendant "heavily
influenced" direction of interrogation); Commonwealth v.
Woollam, 478 Mass. 493, 507 (2017), cert. denied, 138 S. Ct.
1579 (2018) ("the defendant controlled the parameters of the
interview, indicating which questions he would answer and which
he would not"); Commonwealth v. Shine, 398 Mass. 641, 648-649
(1986) (questioning noncustodial where only questions asked were
"natural preliminary questions designed to determine the
defendant's identity and what he knew about the crime").
Finally, where, as here, the defendant's age was known to
the police, we consider the fact that the defendant was
seventeen at the time of the interview. See J.D.B. v. North
Carolina, 564 U.S. 261, 277 (2011) ("so long as the child's age
11In fact, approximately twenty-four minutes into the
interview, the defendant asked the officers why he was being
questioned and if he was a suspect.
17
was known to the officer at the time of police questioning, or
would have been objectively apparent to a reasonable officer,
its inclusion in the custody analysis is consistent with the
objective nature of that test"). We are mindful that "a
reasonable child subjected to police questioning will sometimes
feel pressured to submit when a reasonable adult would feel free
to go." Id. at 272.
Although none of the above factors is alone determinative,
taken together they support a finding that the defendant was in
custody during the entirety of the interrogation. See Baye, 462
Mass. at 253-254 (presence of many custodial factors supported
determination that suspect was in custody).
ii. Validity of waiver. As mentioned, prior to
questioning, the officers told the defendant that he was neither
a prisoner nor a suspect, but instead was a witness. They also
minimized the importance of Miranda protections, telling him
that everyone to whom they speak is advised of his or her
rights. The defendant argues that, given his age at the time of
the interrogation, the tactics that the officers used resulted
in an invalid waiver of his Miranda rights. Although we do not
condone the interrogation methods used, we agree with the judge
who heard the motion to suppress (motion judge) that the
defendant knowingly waived his Miranda rights.
18
The validity of a Miranda waiver depends on the totality of
the circumstances, including "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." Commonwealth v.
Jackson, 432 Mass. 82, 86 (2000), quoting Commonwealth v.
Mandile, 397 Mass. 410, 413 (1986), S.C., 403 Mass. 93 (1988).
Here, the defendant appeared alert, calm, and composed. He
indicated that he was in high school and demonstrated no
difficulty communicating with or understanding the officers. As
each of the Miranda rights was read to the defendant from a
printed form, the defendant nodded and responded affirmatively
to indicate that he understood. The defendant then readily
signed the form acknowledging that he had been informed of and
understood his Miranda rights.
The motion judge noted his concern that investigators used
tactics that "could comprise 'minimization' and 'trickery'."
See Commonwealth v. DiGiambattista, 442 Mass. 423, 433 (2004).
We share that concern, especially because the defendant was
19
seventeen years old at the time.12 However, given the totality
of the circumstances, we agree with the motion judge that the
investigators' comments did not change the fact that the
defendant gave every indication that he understood his Miranda
rights and voluntarily relinquished them. See Commonwealth v.
Tremblay, 460 Mass. 199, 208 (2011).
b. Voluntariness of statement. The defendant separately
contests the voluntariness of his statement. See Magee, 423
Mass. at 387 ("Due process requires a separate inquiry into the
voluntariness of the statement . . ."). The test for
voluntariness is "whether, in light of the totality of the
circumstances surrounding the making of the statement, the will
of the defendant was overborne to the extent that the statement
was not the result of a free and voluntary act" (citation
12In 2010 when the interrogation took place, the defendant,
as a seventeen year old, did not have the benefit of having an
"interested adult" present to ensure a knowing and voluntary
waiver of rights. This court held in Commonwealth v. A
Juvenile, 389 Mass. 128, 133-134 (1983), that juveniles
undergoing interrogation by the police were entitled to the
presence of an "interested adult" who would offset the inherent
imbalance present during police and juvenile interactions.
However, because juveniles were then defined as persons under
the age of seventeen, see Commonwealth v. Carey, 407 Mass. 528,
537 (1990), this protection was held to apply only to those
under the age of seventeen. See, e.g., Commonwealth v. Ray, 467
Mass. 115, 132 (2014). After the enactment of St. 2013, c. 84,
which "amended an array of statutory provisions to treat
seventeen year olds as juveniles," the court expanded the
interested adult rule to apply to seventeen year old individuals
on a prospective basis. Commonwealth v. Smith, 471 Mass. 161,
162, 167-168 (2015).
20
omitted). Tremblay, 460 Mass. at 207. See Commonwealth v.
Selby, 420 Mass. 656, 663 (1995), S.C., 426 Mass. 168 (1997).
"Relevant factors include, but are not limited to, '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.'"
Magee, supra at 388, quoting Mandile, 397 Mass. at 413.
As discussed, the defendant appeared composed, of at least
average intelligence, and emotionally stable. He answered
questions responsively, and there were no signs of coercion. As
for the investigatory tactics used, after informing the
defendant of his Miranda rights, the officers continued to
stress that he was merely a witness. They told the defendant
that he was one of "a bunch of people" they were talking to
about the events on the night in question, and that they wanted
his "perspective on things." Twenty-four minutes into the
interview, when the defendant questioned whether he was a
suspect, the officers once again reassured him that they were
speaking with many other people as well. The deception at issue
here involved putting the defendant at ease rather than
ratcheting up the pressure of the conversation. Although we do
21
not condone deception designed to give a defendant a false sense
of security, particularly a defendant who is a minor, here,
given the other factors present, the officers' deception cannot
be said to have affected the voluntariness of his statement.
See DiGiambattista, 442 Mass. at 432 (police use of trickery
does not compel suppression). We therefore agree with the
motion judge that the defendant's statements were voluntarily
made.
c. Invocation of right to remain silent. Approximately
fifty-five minutes into the interview, the defendant invoked his
right to remain silent by saying, "I'm done talking." In
response, the officers informed the defendant that the victim
had died and asked him if he wanted to view surveillance
footage. The interrogation finally ended when, after reviewing
the surveillance footage and continuing to proclaim his
innocence, the defendant told the officers, "I'm done. I'm
done. You come back at me when I have my lawyer, because I'm
done."
As the Commonwealth concedes, the officers failed
scrupulously to honor the defendant's clear invocation of his
right to silence. Commonwealth v. Neves, 474 Mass. 355, 364
(2016), quoting Commonwealth v. Smith, 473 Mass. 798, 807 (2016)
("A postwaiver invocation must be 'scrupulously honor[ed]' by
the police" [citation omitted]). Thus, everything the defendant
22
said after invoking his Miranda rights should have been
suppressed. See Smith, supra at 808-809. Nevertheless, we
conclude that the improperly admitted portion of the defendant's
statement did not constitute reversible error.
Because the defendant moved to suppress the statements to
investigators, we examine whether admission of the defendant's
statements was harmless beyond a reasonable doubt. Commonwealth
v. Hoyt, 461 Mass. 143, 154 (2011). "When analyzing whether an
error was harmless beyond a reasonable doubt, 'we ask whether,
on the totality of the record before us, weighing the properly
admitted and the improperly admitted evidence together, we are
satisfied beyond a reasonable doubt that the tainted evidence
did not have an effect on the jury and did not contribute to the
jury's verdicts.'" Commonwealth v. Molina, 467 Mass. 65, 79
(2014), quoting Commonwealth v. Tyree, 455 Mass. 676, 701
(2010).
Here, the information the defendant provided after he
announced that he was "done talking" was, for the most part,
cumulative of the statement he had already made. After invoking
his right to silence, the defendant continued to insist, as he
did earlier, that although he chased the victim in the
convenience store parking lot, he ended the pursuit soon
afterwards, and he was never behind the house where the victim's
body was recovered. The admission of the portion of the
23
defendant's statement made after his invocation of silence was,
therefore, harmless beyond a reasonable doubt. See Commonwealth
v. Galicia, 447 Mass. 737, 747-748 (2006) (erroneously admitted
evidence cumulative of properly admitted evidence and therefore
harmless beyond reasonable doubt).
4. Involuntary manslaughter instruction. The judge denied
the defendant's request for an instruction on involuntary
manslaughter at the close of the evidence. The defendant
contends that the failure to instruct on this point was error
because if the jury found that someone else stabbed the victim,
they could have found that the defendant did not share the
intent to kill. See Rakes, 478 Mass. at 32. Because the judge
did not provide an involuntary manslaughter instruction, the
jury did not have the option of finding the defendant guilty of
a lesser homicide offense. The judge did not err.
"Involuntary manslaughter is an unlawful homicide
unintentionally caused by an act which constitutes such a
disregard of probable harmful consequences to another as to
amount to wanton or reckless conduct" (quotation and citation
omitted). Commonwealth v. Carrillo, 483 Mass. 269, 275 (2019).
"[W]anton or reckless conduct is conduct that creates a high
degree of likelihood that substantial harm will result to
another." Id., quoting Model Jury Instructions on Homicide 88
(2018) (involuntary manslaughter). See Commonwealth v.
24
Welansky, 316 Mass. 383, 399 (1944). "In determining whether an
involuntary manslaughter instruction must be given, we ask
whether any reasonable view of the evidence would have permitted
the jury to find wanton and reckless conduct rather than actions
from which a plain and strong likelihood of death would follow"
(quotations and citation omitted). Commonwealth v. Braley, 449
Mass. 316, 331 (2007). We conclude that the circumstances here
did not warrant such an instruction, even viewing them in the
light most favorable to the defendant. See Commonwealth v.
Moseley, 483 Mass. 295, 303 (2019).
Based on the evidence presented to the jury, the defendant,
with a knife in his hand, chased the victim around the parking
lot of a convenience store. Minutes later, the defendant was
spotted with another man pursuing the victim up the street. Two
witnesses testified that they heard slapping noises and groaning
coming from the area where the two men had chased the victim.
Those two witnesses also saw arms flailing while two men
attacked the victim. D'Alessandro testified that he heard the
two attackers speak to one another just after the attack: one
asked, "Did you get him? Did you get him?", and the second
responded, "Yes I got him." The victim was stabbed repeatedly
with a knife in the chest cavity, with stab wounds entering the
victim's lungs.
25
Because it is obvious that stabbing the victim created a
plain and strong likelihood that death would follow, an
involuntary manslaughter instruction was not warranted. See
Commonwealth v. Pagan, 471 Mass. 537, 547, cert. denied, 136
S. Ct. 548 (2015) (involuntary manslaughter instruction not
warranted where defendant stabbed victim in abdomen with eight-
inch blade); Commonwealth v. Pierce, 419 Mass. 28, 33 (1994)
(involuntary manslaughter instruction not warranted where victim
received multiple stab and slash wounds, each sufficient to
cause death).
Further, although we acknowledge that two or more joint
venturers can participate in a criminal act with different
mental states with respect to that act, see Commonwealth v.
Tavares, 471 Mass. 430, 441 (2015), there was no basis for such
a finding here. Even if the jury had found that the defendant
was not the individual who stabbed the victim, evidence of the
circumstances surrounding the beating established that the
defendant knew that there was a plain and strong likelihood that
death would result from the joint actions of the attackers. See
Commonwealth v. Tague, 434 Mass. 510, 518-519 (2001), cert.
denied, 534 U.S. 1146 (2002) (involuntary manslaughter
instruction not warranted where multiple people beat victim to
death with variety of weapons, including knives). We discern no
26
error in the trial judge's denial of the defendant's request for
an instruction on involuntary manslaughter.
5. Postconviction motions. After his conviction, the
defendant moved for a new trial, arguing that his trial counsel
was ineffective for failing to uncover additional third-party
culprit evidence, and that he was unfairly deprived of
exculpatory evidence. The defendant sought posttrial discovery
as well as an evidentiary hearing in connection with the motion
for a new trial. He now appeals from the denial of his
postconviction motions.
a. Failure to investigate. In December 2013, Garnham was
shot and killed in Pittsburgh, Pennsylvania, by a State police
trooper during a standoff with police after having kidnapped and
threatening to kill his former girlfriend's baby. The defendant
faulted his trial counsel for failing to investigate the death,
claiming that, as a result, the attorney failed to discover the
additional evidence that Garnham had admitted to his former
girlfriend that he stabbed the victim.
A defense attorney is considered to have provided
ineffective assistance in defending a charge of murder in the
first degree if an error made "was likely to have influenced the
jury's conclusion." Commonwealth v. Wright, 411 Mass. 678, 682
(1992), S.C., 469 Mass. 447 (2014) (substantial likelihood of
miscarriage of justice standard). See G. L. c. 278, § 33E. An
27
attorney's strategic or tactical decision constitutes error
"only if it was manifestly unreasonable when made" (citation
omitted). Commonwealth v. Coonan, 428 Mass. 823, 827 (1999).
The decision not to investigate Garnham's death was not
manifestly unreasonable. There was no reason for trial counsel
to believe that undertaking such an investigation would have
yielded any information that would have been helpful to the
defendant. Although, at the time of his death, Garnham was
expected to return to Massachusetts to testify in Jean's trial
for murder, he already had testified in Cruz's trial earlier
that year. And nothing about the particular circumstances in
which Garnham died suggested a connection between his death and
the killing of the victim. See Commonwealth v. Watt, 484 Mass.
742, 764 (2020) (no error in failing to investigate speculative
theories). As trial counsel did not err in this aspect of the
case, there was no ineffective assistance.
Even if we determined that trial counsel did err in failing
to request the police reports prepared in connection with
Garnham's death, such reports likely would not have influenced
the jury's conclusion. First, assuming Garnham was truthful
when he confessed to being the person who stabbed the victim,
that fact would not have exculpated the defendant.13 As
13One eyewitness testified that he saw two attackers in the
back yard, and a second eyewitness testified that there were
28
discussed, to prove the defendant guilty as a joint venturer,
the Commonwealth needed only to demonstrate that the defendant
was engaged with others in the attack with the requisite intent.
See Rakes, 478 Mass. at 32. Second, the statement from
Garnham's former girlfriend would have been cumulative to
evidence that the defense had presented at trial demonstrating
that Garnham was involved in the attack and, more specifically,
that he told others of his involvement.14 The failure to
discover and present such evidence is not ineffective
assistance.15 See Commonwealth v. Freeman, 442 Mass. 779, 791
(2004), S.C., 451 Mass. 1006 (2008).
three attackers. However, both testified that only one of the
attackers wore white; everyone else, including the victim, wore
dark clothing. Thus, an assumption that Garnham, who wore a
dark tank top, was one of the attackers does not suggest an
inference that the defendant, who wore white, was not.
14 Defense counsel explored Garnham's involvement in the
killing through cross-examination of the Commonwealth's
witnesses. The evidence elicited included testimony from
Lawrence suggesting that Garnham allegedly disposed of a knife
after the stabbing, and testimony from an investigator that in
the days afterward Garnham cut his hair and then left the State.
Trial counsel also called two witnesses who testified that
Garnham made several statements implicating himself in the
attack.
15The defendant moved for postconviction discovery
regarding any favorable treatment that the Commonwealth provided
to Garnham, as well as any statements of Amber Nice, Garnham's
girlfriend at the time of the victim's stabbing, who told police
that Garnham admitted to being involved in the attack.
"Posttrial discovery may be authorized where affidavits filed by
the moving party 'establish a prima facie case for relief.'
Mass. R. Crim. P. 30 (c) (4)[, as appearing in 435 Mass. 1501
29
b. Deprivation of Torrey's testimony. Based on the
evidence presented to the jury, including surveillance footage
and Lawrence's testimony, Torrey attempted to hold the
defendant's arm to prevent him from chasing the victim, but
ultimately was unsuccessful. Soon thereafter, Torrey drove to
the house behind which the victim had been attacked and called
for the defendant, Garnham, and Lawrence to get in her car. She
then drove away from the scene. Torrey was indicted as an
accessory after the fact in connection with the victim's
killing.
During Jean's trial, which took place approximately eight
months prior to the defendant's trial, the Commonwealth sought a
court order granting Torrey immunity from prosecution, but later
(2001)]." Commonwealth v. Sealy, 467 Mass. 617, 628-629 (2014),
citing Commonwealth v. Daniels, 445 Mass. 392, 407 (2005). "To
meet the prima facie case standard for discovery under a motion
for a new trial based on newly discovered evidence, a defendant
must make specific, not speculative or conclusory, allegations
that the newly discovered evidence would have 'materially aided
the defense against the pending charges,' Commonwealth v.
Tucceri, 412 Mass. 401, 405 (1992), and that this evidence, if
explored further through discovery, could yield evidence that
might have 'played an important role in the jury's deliberations
and conclusions, even though it is not certain that the evidence
would have produced a verdict of not guilty.' Id. at 414."
Daniels, supra. That is, "the defendant must make a sufficient
showing that the discovery is reasonably likely to uncover
evidence that might warrant granting a new trial." Sealy, supra
at 629, quoting Daniels, supra. Here, because the defendant's
conviction as a joint venturer does not depend on whether and to
what extent Garnham was involved in the attack, it was not error
to deny the defendant's motion for posttrial discovery on that
issue.
30
withdrew its request. Jean's counsel moved the trial judge to
grant Torrey judicial immunity so that he could call her as a
witness, but that motion was denied. Torrey later invoked her
right under the Fifth Amendment to the United States
Constitution to remain silent in connection with the defendant's
trial,16 and defense counsel did not seek judicial immunity for
her.
The defendant posits that because the Commonwealth withdrew
its application to grant Torrey immunity, her testimony would
have been unfavorable to the Commonwealth and, conversely,
favorable to the defendant. Thus, he asserts that the
Commonwealth improperly prevented Torrey from providing
testimony that may have exculpated him, and that the judge who
decided the postconviction motions (postconviction judge) erred
in failing to order an in camera hearing to learn the substance
of Torrey's potential testimony. However, other than pointing
to the Commonwealth's decision not to seek immunity from
prosecution for Torrey, the defendant has not provided any
support for this claim. That is, he has failed to explain how
Although the Commonwealth had dismissed the indictment
16
against Torrey by the time of the defendant's trial, she
presumably could have been reindicted.
31
Torrey's testimony might have exculpated him. There was no
error.17
6. Review under G. L. c. 278, § 33E. Aside from the
arguments raised on appeal, the defendant points to three other
issues that, he argues, together warrant relief pursuant to
G. L. c. 278, § 33E. We do not agree.
First, he contends that trial counsel erroneously declined
a humane practice instruction with regard to the statements he
made to police. In order to be entitled to a humane practice
instruction, the voluntariness of the defendant's statements to
police must be a live issue at trial. Commonwealth v. Gallett,
481 Mass. 662, 686-687 (2019). Although the defendant raised
the voluntariness of his statements in a motion to suppress
pretrial, that motion was denied; the issue was not revisited at
trial. Consequently, the trial judge was not required to give a
humane practice instruction. See Amaral, 482 Mass. at 506-507.
17The postconviction judge did not err in denying the
defendant's motion without a hearing. A judge need not hold a
hearing in connection with deciding a motion for a new trial if
"no substantial issue is raised by the motion or affidavits."
See Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501
(2001). The postconviction judge determined that the documents
filed with the defendant's motion provided all of the
information necessary for him to decide the motion, and that
thus a hearing was unnecessary. He did not abuse his discretion
in this matter. See Commonwealth v. Goodreau, 442 Mass. 341,
348-349 (2004).
32
Second, the defendant points to the fact that Garnham's
brother, who testified as to inculpatory statements made by
Garnham, appeared in handcuffs without a jury instruction to
mitigate potential prejudice. However, prior to his testimony,
trial counsel agreed to a procedure where the witness would be
in place prior to the arrival of the jury, and keep his hands
from view. As the defendant presents no evidence to suggest
that the jury were aware that the witness was in handcuffs,
there was no error in failing to provide an instruction on the
matter.
Finally, the defendant points to his "youth" and
"impetuosity," combined with "spontaneous rapidly unfolding
events," as factors to be considered under § 33E. As the
defendant was a juvenile at the time of the killing, his penalty
for murder in the first degree was a sentence of life in prison
with, rather than without, the possibility of parole. See
Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass.
655, 673 (2013), S.C., 471 Mass. 12 (2015). Therefore, the
defendant's youth, and everything that comes with it, including
impetuosity, in fact was taken into consideration. See id. at
669-670. As for the spontaneous nature of the rapidly unfolding
events, we do not agree that this factor deserves any additional
consideration under § 33E, given that the defendant is the one
who set those events in motion.
33
Upon review of the above issues, and the entire record, we
discern no error that resulted in a substantial likelihood of a
miscarriage of justice. For that reason we decline to order a
new trial or reduce the degree of guilt under G. L. c. 278,
§ 33E.
Conclusion. For the foregoing reasons, the defendant's
conviction is affirmed. The orders denying the motions for
postconviction discovery and for a new trial are also affirmed.
So ordered.