Commonwealth v. Lopez

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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.