# Commonwealth v. Jessup

> Massachusetts Supreme Judicial Court · April 8, 2015 · 471 Mass. 121

URL: https://www.frixlaw.com/law-library/cases/2792027

## Case

- **Full name:** Commonwealth vs. Anthony Eugene Jessup
- **Court:** Massachusetts Supreme Judicial Court
- **Decided:** April 8, 2015
- **Citations:** 471 Mass. 121; 27 N.E.3d 1232
- **Precedential status:** Published
- **Opinion:** Opinion by Hines
- **Judges:** Gants, Cordy, Botsford, Lenk, Hines
- **Cited by:** 34 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2792027

## Opinion text

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-11376

COMMONWEALTH vs. ANTHONY EUGENE JESSUP.

Hampden. December 5, 2014. - April 8, 2015.

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

Homicide. Firearms. Felony-Murder Rule. Constitutional Law,
Imprisonment, Freedom of speech and press. Wanton or
Reckless Conduct. Robbery. Practice, Criminal, Capital
case, Motion to suppress, Instructions to jury, Assistance
of counsel.

Indictments found and returned in the Superior Court
Department on July 30, 2010.

A pretrial motion to suppress evidence was heard by
Constance M. Sweeney, J., and the cases were tried before
Richard J. Carey, J.

Elaine Pourinski for the defendant.
Deborah D. Ahlstrom, Assistant District Attorney, for the
Commonwealth.

HINES, J. In the early morning hours of May 30, 2010,

Jonathan Santiago was shot and killed as he sat in his vehicle

parked near a Springfield sports bar. The defendant was

indicted for the shooting, and a jury convicted him of murder in
2

the first degree on the theory of felony-murder (with attempted

armed robbery as the underlying felony), unlawful possession of

a firearm, and unlawful possession of a loaded firearm.1,2

Represented by new counsel on appeal, he argues (1) error in the

denial of his motion to suppress a letter he wrote to another

detainee while he was detained awaiting trial; (2) that a

substantial likelihood of a miscarriage of justice arose from

the trial judge's failure to instruct on involuntary

manslaughter; and (3) that his trial counsel was ineffective in

not requesting an instruction on involuntary manslaughter based

on wanton or reckless conduct. We affirm the order denying the

defendant's motion to suppress as well as the defendant's

convictions, and discern no basis to exercise our authority

pursuant to G. L. c. 278, § 33E.

Background. Based on the evidence adduced by the

Commonwealth at trial, the jury could have found the following

facts. On May 29, 2010, the victim met up with his friends,

1
The defendant also was convicted of armed assault with
intent to rob, which was dismissed as duplicative of the
predicate felony underlying the felony-murder conviction, and of
unlawful possession of ammunition, which was dismissed as a
lesser included offense of unlawful possession of a loaded
firearm.
2
The defendant was tried together with Jason Jamal Stovall,
who was charged with the same offenses as the defendant, but as
an aider and abettor or joint venturer, see Commonwealth v.
Zanetti, 454 Mass. 449, 466-467 (2009). The jury found Stovall
not guilty on all charges against him.
3

Andrew Cooke, Marquis Chase, Kasheef Sheppard, Timothy

Henderson, and Alan Bamber, outside a sports bar in Springfield

where Virgil Vargas was celebrating her twenty-first birthday.3

Vargas previously had attended high school in Springfield with

the victim, the defendant, and James Jamal Stovall, who was

tried with the defendant. Stovall was her friend. She spoke

with Stovall and the defendant outside the bar about fifteen to

twenty minutes before the shooting.4 According to Vargas, both

men wore black hooded sweatshirts, and hats.5 The defendant's

braided hair was visible under his hat. At the time of the

shooting, which Vargas estimated had occurred at approximately

12:35 A.M., she had returned inside the bar.

The victim, who was wearing a "long, big chain," was parked

in a lot across the street from the bar. He waited by the trunk

3
Virgil Vargas had promoted the party on social media
sites.
4
Others saw the defendant and Stovall in the area outside
the bar before the shooting. Andrew Cooke, who previously had
worked at a restaurant with Stovall and "knew of" the defendant,
testified that he saw the defendant and that the defendant was
wearing a black "pilot's" jacket and a black baseball cap. He
did not "get a good look" at Stovall. Marquis Chase also saw
the defendant and Stovall before the shooting. Chase testified
that the defendant was wearing a black sweatshirt and hat and
had braided hair, and that Stovall was wearing a black
sweatshirt. Another person present testified that he saw the
defendant and Stovall before the shooting and that both were
wearing hooded sweatshirts and one wore a hat.
5
In her invitations to her party, Vargas had asked people
to wear black clothing.
4

of his automobile while some of his friends were deciding

whether to stay or leave. When the group decided to leave,

Cooke approached the victim, who was then seated in the driver's

seat of his automobile, to inform him.

The testimony varied about what happened next. Cooke

testified that when he reached the victim's automobile, he

leaned over to speak with the victim through the front driver's

side window, which was partially opened. As Cooke was doing so,

he heard a sound and turned back toward it. He saw a light-

skinned African-American male,6 with braids, a hat, and a

"pilot's" jacket approach from behind with a gun. The person

put the gun into the rear driver's side window, and stated,

"Give me some money," or "Give me what you have."7 Cooke

testified that he heard a gunshot, saw the victim's automobile

back up and then move forward, and then heard the automobile

crash into a fire hydrant. Cooke did not see anyone else at or

approaching the victim's automobile.8̓9

6
Cooke testified that he only saw part of the shooter's
face, namely, the shooter's chin.
7
After the shooting and while at the scene, Cooke told one
officer that the shooter had pointed the gun at the victim and
ordered the victim to get out of the automobile and then pointed
the firearm at him (Cooke).
8
During his cross-examination, Cooke acknowledged that he
told a police officer that there might have been someone on the
other side of the automobile.
5

Chase testified that just before the shooting, Cooke was

speaking to the victim through the driver's side window. Chase

heard someone say, "Open the door or I'll kill you." He went to

see what was going on and saw a black male with braids10 behind

Cooke with his arm inside the rear driver's side window of the

victim's automobile (but did not see a gun). Chase testified

that he observed another person, who also was a black male,

standing by the passenger's side mirror of the victim's

automobile. Chase heard a gunshot and then observed the

victim's automobile travel in reverse, eventually crashing into

a fire hydrant. Chase testified that after the shooting, the

two men who had approached the vehicle took off running across

the street.11

Another individual who was present, Kashawn Harris,

testified that he knew Stovall from high school and was familiar

with the defendant. After Harris learned that his friends were

going to leave and not attend the party, he went back to his

automobile. He heard yelling and turned around. Harris saw a

light-skinned black male in dark clothing on the driver's side

9
At trial, Cooke made an in-court identification of the
defendant as the shooter.
10
Chase testified that he did see some of this man's face.
11
When Chase first spoke with police, he did not mention
Cooke's presence or that anyone was in the area of the
passenger's side door.
6

of the victim's automobile reaching into the automobile and

another person in dark clothing running up on the other side of

the automobile. He saw the person on the passenger's side of

the automobile touch the roof and a door. From the direction of

the victim's automobile, he heard a shot, and he then saw the

victim's automobile move and crash into a fire hydrant. Harris

could not recall whether the victim's automobile moved before

the shot was fired, but the two occurrences were close in time.

He testified that after the shooting, the two people he had seen

by the victim's automobile took off running across the street.

After the shooting, the victim's friends rushed over to his

automobile, and Chase and Henderson entered the vehicle and

tried to revive him. The scene was chaotic with people running

and screaming.

Police and medical response personnel arrived at the scene

within minutes. The victim died as the result of a gunshot

wound to his back and chest. The medical examiner who conducted

the autopsy testified that the victim had an entrance wound in

the middle of the left side of his back. The bullet traveled

through his left lung, which collapsed; went through his aorta,

a major blood vessel; and exited through his upper right chest.

The track of the wound was left to right, and back to front.

Although the victim suffered other injuries to his face, the

gunshot wound caused his death. The medical examiner also
7

opined that the gunshot wound was not one which would have

resulted from a gun being fired from within two inches of the

victim, so that the wound could not be characterized as a

contact or close contact wound.

Police searched the area. One officer found a discharged

nine millimeter cartridge casing which he opined likely would

have been fired from a semiautomatic weapon. No weapon was ever

recovered.

The victim's automobile subsequently was processed for the

presence of fingerprints. Fingerprints taken from the front and

rear passenger's side windows matched those of Stovall.

Fingerprints removed from other areas inside and outside the

automobile matched those of Henderson and Chase. There were no

fingerprints matching the defendant's.

Police took statements from various people who were present

at the time of the shooting. They brought several people to the

police station to view (separately) photographs of possible

suspects.

One officer, based on a description that Chase had given of

the shooter, generated about 900 photographs of possible

suspects through a computer search. The officer asked Chase to

view the suspects on the computer, which displayed about twelve

photographs per screen. After viewing approximately 300

photographs, Chase selected the defendant's photograph,
8

identifying him as the shooter. At this point, the police

learned the defendant's name.

Cooke told Springfield police Sergeant Kevin Devine that

the shooter was a light-skinned black male between five feet,

four inches and five feet, seven inches; wore a black baseball

cap with a "B" on it; wore a dark-colored coat; and had braids

to the back of his neck. Cooke testified that he also told

police that the shooter had a moustache and some markings on his

face. Cooke was not able to positively identify the defendant

from any photographs shown to him on a computer screen, but

later from a photographic array of eight individuals he selected

three photographs depicting individuals who bore a resemblance

to the shooter, one of which was a photograph of the defendant.

Cooke stated that if he were to see the shooter in person, he

would be able to make a positive identification.

On May 31, Cooke returned to look at a photographic array,12

but was not able to make an identification. Again, he pointed

to one photograph (of the defendant), stating that the person

resembled the shooter.

In the early afternoon of June 1, Cooke, Bamber, Sheppard,

and Chase went to a park to go swimming. While there, they saw

the defendant and his girl friend. Cooke "stopped dead in his

12
This photographic array contained the same subjects as
the earlier one referenced, but displayed a profile view of
those subjects.
9

tracks" when he saw the defendant. Someone asked, "Is that

him?" to which Cooke replied that it was.13 Cooke's friends then

attacked the defendant, who eventually was able to escape.

Later, Cooke contacted Sergeant Devine and went to the police

station; there, looking at a different photograph array

containing eight photographs, Cooke positively identified a

photograph of the defendant as the person who had shot the

victim.

Police had Chase return to the police station to view a

photographic array containing eight photographs. Chase selected

the defendant's photograph from the array and stated that the

person depicted therein was one of the two men at the victim's

automobile at the time of the shooting. From a different

photographic array, Chase also identified one of the two men as

Stovall.

Police also had Harris view photographic arrays on June 1.

From an array, Harris selected the defendant's photograph as

depicting the person on the driver's side of the victim's

automobile and, from another array, selected Stovall's

photograph as being one of the two men who fled from the

victim's automobile after the shooting. At trial, Harris

testified that, at the time of the shooting, he had not seen the

13
Cooke testified that it was his cousin Chase who had
asked this question, but Chase denied it at trial.
10

faces of the men who had approached the victim, but had assumed

from the clothing worn by the men who had been by the victim's

automobile that the men were the defendant and Stovall.

After the encounter with the victim's friends, the

defendant and his girl friend fled Massachusetts. They were

apprehended in Virginia on June 2, the next day, and detained at

the Southside regional jail (jail) in Emporia, Virginia, pending

extradition to Massachusetts. While awaiting extradition, the

defendant sent his girl friend, who also was being detained at

the same facility, a letter that was the subject of the motion

to suppress. The Commonwealth introduced a redacted portion of

this letter at trial as admissions of the defendant as well as

consciousness of guilt evidence. In the letter, the defendant

stated:

"I hated being broke. I mean the lights got cut off,
there was no cable, . . . gas, . . . et cetera. I wanted
to do so much with so little and it didn't help, you kept
reminding me that I wasn't shit and I didn't have shit. I
. . . felt worthless and it hurt, so it caused me to not
think clearly and to go out and do some dumb shit.

"But I got good news, I'm not going to do life, first
the bullet didn't kill him, the accident did, and second,
they don't have any evidence just those stupid school kids
saying I did it, but you know how that is that. All I know
is that I was driving with you all day and left and went
home, so I don't know what them kids are talking about.

"I'm going to beat this case so stick by me please and
then we can move if you want and start a new life, I swear.
I don't know about you, but I was kind of glad this shit
happened because we went on a road trip together. I was so
11

excited to go to ATL with you. I couldn't wait to start
over."

Neither the defendant nor Stovall testified. The defendant

presented a case of misidentification. His former attorney

testified that while interviewing Sheppard on May 20, 2011,

Sheppard stated that he had spoken with Chase, Bamber, and Cooke

before they were interviewed at the police station on the

morning of the shooting and that none of them had seen who shot

the victim. The defendant's trial counsel argued that the

identifications made by Harris, Cooke, and Chase were not

credible. Defense counsel also underscored the absence of

physical evidence connecting the defendant to the crime and

argued that the defendant had to flee the Commonwealth for his

own safety.

Discussion. 1. Motion to suppress. Prior to trial, the

defendant filed a motion to suppress two letters, one that he

sent to, and one he received from, his girl friend, while both

the defendant and his girl friend were being held pending

extradition to Massachusetts. The Virginia authorities seized

the letters under the jail's policy prohibiting inmate-to-inmate

correspondence without prior approval. The defendant argued

that the letters were seized in violation of the First Amendment

to the United States Constitution, as applied to the States

through the Fourteenth Amendment to the United States
12

Constitution. After conducting an evidentiary hearing, a judge

denied the motion.

One witness, Lieutenant Richard Miles, an employee of the

jail, testified at the evidentiary hearing on the motion. We

recite the facts found or implicitly credited by the motion

judge, supplemented by additional undisputed facts where they do

not detract from the judge's ultimate findings. See

Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450

Mass. 818 (2008).

On June 2, three days after the murder and the next day

after the encounter with the victim's friends, the defendant was

arrested in Virginia. His girl friend was with him at the time

and, shortly thereafter, also was arrested on an outstanding

warrant. At the jail, the defendant and his girl friend were

held in separate units based on their gender. Male and female

inmates were not permitted to communicate with each other. The

jail's written policy precluded inmate-to-inmate correspondence

by mail without prior approval.14 Inmates were notified of this

policy, among others, when they were admitted to jail. The

policies and procedures of the jail were established to ensure

safety and security.

14
Specifically, the policy provided: "Inmate to inmate
correspondence within the facility will only be approved when a
prior family relationship is verified."
13

On June 17, 2010, Miles collected outgoing mail that had

been placed in a window in the common room of the housing unit

in which the defendant and seven other male inmates were being

detained. One item of mail, an envelope addressed to, and with

the same return address of, the defendant's girl friend (the

return address and sending address were that of the jail)15

raised a "red flag." Miles confiscated the letter because, as

indicated by the envelope's return address, "it was mail from a

female [who obviously did not reside] in a housing unit that was

male."

The jail's policy permitted an inmate's mail to be read by

jail personnel only if the mail was first deemed to be

contraband. Miles considered the letter contraband and opened

it to identify the sender, as it appeared to have a female

sender and only a male inmate in the unit would have authored

it. He called out the defendant's name, but the defendant did

not respond. Another inmate went to the defendant's cell and

informed the defendant that his mail had been confiscated.

Miles returned to the defendant the envelope in which the

letter had been contained, but Miles kept the letter itself. He

then verified that the defendant's girl friend was housed at the

jail, that she and the defendant were "codefendants," and that

15
The envelope was addressed to "Cherily Nixon, 244 Uriah
Branchway, Emporia, VA 23847," and had the return address of
"Cherily Nixon, 244 Uriah Branchway, Emporia, VA 23847."
14

neither the defendant nor the defendant's girl friend had

obtained permission to correspond. Miles read the letter16 and

then returned to the defendant's cell to retrieve the envelope.

Miles also confiscated a second letter from the defendant's cell

(that letter was sent to the defendant from his girl friend).17

Miles forwarded the letters to his supervisor.

The defendant maintains on appeal that his letter to his

girl friend18 should have been suppressed because it was

confiscated in violation of his right to free speech under the

First Amendment. In reviewing a decision on a motion to

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

absent clear error 'but conduct an independent review of [the

judge's] ultimate findings and conclusions of law.'"

Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting

Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).

Courts "must take cognizance of the valid constitutional

claims of prison inmates." Turner v. Safley, 482 U.S. 78, 84

16
The relevant portions of this letter appear earlier in
this decision.
17
Lieutenant Richard Miles testified that, pursuant to a
policy of the Southside regional jail, the discovery of
contraband authorizes a cell search.
18
Only some of the contents of the letter that the
defendant had written to his girl friend were admitted in
evidence over his objection at trial. The prosecutor did not
seek to admit the letter that the defendant's girl friend had
written to him.
15

(1987). Because prisoners retain their constitutional rights,

"[w]hen a prison regulation or practice offends a fundamental

constitutional guarantee, . . . courts will discharge their duty

to protect constitutional rights." Id., quoting Procunier v.

Martinez, 416 U.S. 396, 405-406 (1974) (Martinez). Regulations,

policies, or practices that restrict the written correspondence

or mail of prisoners no doubt implicate the First Amendment's

guarantee of freedom of speech. See, e.g., Martinez, supra at

406, 408.

At the same time, "[p]rison [officials] are responsible for

maintaining internal order and discipline, for securing their

institutions against unauthorized access or escape, and for

rehabilitating, to the extent that human nature and inadequate

resources allow, the inmates placed in their custody."

Martinez, 416 U.S. at 404. "The Herculean obstacles to

effective discharge of these duties are too apparent to warrant

explication." Id. Running a prison requires "expertise,

comprehensive planning, and the commitment of resources, all of

which are peculiarly within the province of the legislative and

executive branches of government." Id. at 405. As such,

"courts are ill equipped to deal with the increasingly urgent

problems of prison administration and reform." Id.

Consequently, "[w]here a [S]tate penal system is involved . . .

courts have . . . additional reason to accord deference to the
16

appropriate prison authorities." Turner, 482 U.S. at 85, citing

Martinez, supra.

In Martinez, 416 U.S. at 398, 416, the United States

Supreme Court first addressed the issue of prisoner mail when it

considered the constitutionality of a California Department of

Corrections regulation that censored inmate mail deemed to

magnify grievances or contain other inflammatory statements. In

determining whether "censorship of prisoner mail is justified,"

id. at 413, the Supreme Court set forth a two-part test:

"First, the regulation or practice in question must
further an important or substantial governmental interest
unrelated to the suppression of evidence. Prison officials
. . . must show that a regulation authorizing mail
censorship furthers one or more of the substantial
government interests of security, order, and
rehabilitation. Second, the limitation of First Amendment
freedoms must be no greater than is necessary or essential
to the protection of the particular governmental interest
involved."

Id.

Subsequently, in Turner, 482 U.S. at 81, the Supreme Court

considered a Missouri regulation that forbade communication

between inmates at different institutions. The Supreme Court

took care to distinguish its earlier holding in Martinez, noting

that the Martinez case "turned on the fact that the challenged

regulation caused a 'consequential restriction on the First and

Fourteenth Amendment rights of those who are not prisoners'"

(emphasis in original). Turner, supra at 85, quoting Martinez,
17

416 U.S. at 409. The Supreme Court upheld the challenged

regulation and in so doing set forth a standard to be applied

different from that stated in Martinez. Turner, supra at 89,

93. Recognizing that courts must balance First Amendment rights

of prisoners against legitimate penological governmental

interests, the Supreme Court expressly adopted a deferential

standard of scrutiny for the review of regulations and policies

in the prison context that infringe on free speech rights under

the First Amendment.19 Id. at 89. Specifically, the Supreme

Court directs that, "when a prison regulation impinges on

inmates' constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological interests." Id.

Under Turner, the reasonableness inquiry focuses on several

factors, none of which suggests a violation of the defendant's

First Amendment rights in this case.

"The first Turner factor is multifold [and involves

determining] whether the governmental objective underlying the

regulations at issue is legitimate and neutral, and that the

regulations are rationally related to that objective."

Thornburgh v. Abbott, 490 U.S. 401, 414 (1989) (Abbott). The

second factor requires determining whether alternative means

19
We have adopted this standard. See Massachusetts
Prisoners Ass'n Political Action Comm. v. Acting Governor, 435
Mass. 811, 819 (2002), quoting Turner v. Safley, 482 U.S. 78, 89
(1987).
18

exist for exercising the challenged right. Id. at 417. The

third factor considers the "impact the accommodation of the

asserted constitutional right will have on others (guards and

inmates) in the prison." Id. at 418. Last, Turner stated that

"the existence of obvious, easy alternatives may be evidence

that the regulation is not reasonable, but is an 'exaggerated

response' to prison concerns. . . . [I]f an inmate claimant can

point to an alternative that fully accommodates the prisoner's

rights at de minimis cost to valid penological interests, a

court may consider that as evidence that the regulation does not

satisfy the reasonable relationship standard." Id., quoting

Turner, 482 U.S. at 90-91.

As an initial matter, the defendant argues that the letter

itself was not contraband because it did not contain any

physical items such as drugs or weapons. The term contraband,

however, is not so narrowly construed and includes, in

accordance with its ordinary meaning and usage, any item not

approved for retention. See, e.g., 103 Code Mass. Regs. 403.06

(2001) (defining contraband as "any item[s] not approved for

retention by an inmate at an institution"). See also Webster's

Third New International Dictionary 494 (1993) (defining

"contraband" as "goods or merchandise the importation,

exportation, or sometimes possession of which is forbidden").

Here, the letter was addressed to a female inmate and thus was
19

sent in violation of the jail's policy prohibiting inmate-to-

inmate correspondence without prior approval. The letter was a

prohibited item. Miles properly considered it contraband.

We turn now to application of the reasonableness test,

commencing with an analysis of the first Turner factor. The

policy's prohibition on inmate-to-inmate correspondence in the

absence of a family relationship and where approval to

correspond had not been first obtained is reasonably related to

legitimate penological interests. Here, the policy was

established to ensure safety and security within the prison.

The policy recognizes that inmate-to-inmate correspondence has

the potential to be significantly disruptive, as such

correspondence may involve planned escapes, acts of violence, or

other schemes in the cases of pretrial detainees, including

witness intimidation or tampering with evidence before trial.

See Turner, 482 U.S. at 91-92; Nasir v. Morgan, 350 F.3d 366,

372 (3d Cir. 2003). These concerns justify implementation of

the challenged policy. See Abbott, 490 U.S. at 404-405, 415,

quoting Pell v. Procunier, 417 U.S. 817, 823 (1974) (regulations

authorizing warden to reject inmate's subscription publication

were aimed at protecting prison security, "a purpose [Supreme]

Court has said is 'central to all other corrections goals'");

Turner, supra at 81, 91 (prohibition on correspondence between

inmates of different facilities is logically connected to
20

legitimate security concerns); Martinez, 416 U.S. at 412-413

("the legitimate governmental interest in the order and security

of penal institutions justifies the imposition of certain

restraints on inmate correspondence"); Farrell v. Peters, 951

F.2d 862, 863 (7th Cir. 1992) (prison officials may exercise

discretion over delivery of correspondence between inmates in

different correctional facilities based on safety and security

concerns).

Turning to neutrality, the Supreme Court has "found it

important to inquire whether prison regulations restricting

inmates' First Amendment rights operated in a neutral fashion,

without regard to the content of the expression." Turner, 482

U.S. at 90. Here, the prohibition on inmate-to-inmate

correspondence applies to all inmate-to-inmate correspondence,

without regard to the content of the correspondence. We thus

conclude that the neutrality requirement is satisfied.20 See id.

Concerning the last part of the first Turner factor, the

challenged policy is rationally connected to the legitimate

safety concerns enunciated above. Of significance, the policy

differentiates between inmates who are family members and

20
The defendant contests neutral application of the policy
because his girl friend was able to send a letter to him. The
defendant points to no other instances where the policy was not
enforced. Under the circumstances and on this record, the fact
that the defendant's girl friend was able to send a letter to
the defendant appears to be an isolated occurrence in which one
parcel of mail inadvertently was not discovered and confiscated.
21

inmates who are not. Recognizing that there may be legitimate

reasons for fellow inmates who are family members to

communicate, the policy focuses "a limited class of other people

with whom prison officials have particular cause to be

concerned," Turner, 482 U.S. at 92, namely other inmates who are

not family members. Because of the legitimate safety concerns

enunciated above, and the dangers inherent in inmates of the

same facility being able to freely converse, the challenged

policy of limiting such correspondence to family members and

requiring prior approval reasonably relates to maintaining order

and security in the jail. While family members who are fellow

inmates also may have ulterior motives behind their

communications, the risk reasonably could be considered less

likely than that concerning those inmates sharing no family

background and is minimized by an approval process.

As to the second Turner factor, the defendant did not have

an alternative means to exercise the challenged right because

the defendant and his girl friend were not family members. We

note, however, that in the defendant's case, the limitation on

communication at the time was to be temporary, as he was

awaiting extradition to Massachusetts. The policy, as applied

to him, did not effect a permanent limitation on his right to

correspond with his girl friend.
22

Next, concerning the impact of accommodating the asserted

right if the policy is invalidated, we conclude that such

accommodation would likely have a significant potential negative

impact on jail personnel and other inmates. Internal

correspondence to nonfamily members no doubt would increase, and

with no confiscation and review of the content, there would be

no way of knowing if concerted criminal activity were afoot,

thus compromising security. Jail officials would not be able to

prevent, deter, and discover threats, escape plans, or planned

acts of violence. The safety of noncorresponding inmates would

be at risk.

Last, the defendant contends that, as an alternative to

enforcing the policy, Miles could have just reminded him about

the policy and returned the letter to him. Such action,

however, would obviate the need for the policy in the first

instance and, again, would fail to uncover whether in fact any

type of coordinated criminal activity was occurring. We are

satisfied, therefore, that the policy is not an "exaggerated

response" to the problem posed by inmate-to-inmate written

correspondence. See Turner, 482 U.S. at 90-91. We conclude

that an inmate does not have a First Amendment right to

unmonitored written correspondence with another inmate at the

same detention facility and that the policy did not violate

First Amendment guarantees.
23

We address one additional argument made by the defendant.

Relying on Abbott, 490 U.S. at 411-412, in which the Supreme

Court noted that outgoing mail by its very nature does not "pose

a serious threat to prison order and security," or a "danger to

the community inside the prison" (emphasis in original), the

defendant argues that his outgoing mail should be afforded

greater constitutional protection than incoming mail. No doubt,

some Federal courts, relying on Martinez, 416 U.S. at 413, have

applied a different standard to the outgoing mail of prisoners

as opposed to their incoming mail. See, e.g., Koutnik v. Brown,

456 F.3d 777, 784 (7th Cir. 2006), cert. denied, 552 U.S. 809

(2007) (inmates' outgoing mail scrutinized under Martinez

standard); Nasir, 350 F.3d at 371 (noting that many Federal

courts apply Martinez standard to outgoing mail and Turner

standard to incoming mail). Other Federal courts, however, have

rejected such a distinction. See, e.g., Gassler v. Wood, 14

F.3d 406, 410 n.6 (8th Cir. 1994) (rejecting distinction drawn

by type of mail); Brewer v. Wilkinson, 3 F.3d 816, 824 & n.10

(5th Cir. 1993), cert. denied, 510 U.S. 1123 (1994) (reasoning

that Abbott suggests that Turner standard could apply to

outgoing mail because in Turner, Court explained that when

determining "whether the existence of other alternatives

evidenced the unreasonableness of a prison regulation or

practice, a court was not to employ a 'least restrictive means
24

test'" set forth in Martinez). The latter approach, rejecting

any distinction between outgoing and incoming mail, recognizes

that outgoing mail may pose just as many dangers as incoming

mail, including escape plans, illegal activities, and threats.

See Smith v. Delo, 995 F.2d 827, 831 (8th Cir. 1993), cert.

denied, 510 U.S. 1052 (1994). We need not offer our own

resolution of the conflict, if any exists, of what standard of

review to apply to outgoing mail as opposed to incoming mail,

because the mail at issue in this case was addressed to a fellow

inmate, thus rendering the mail not only outgoing mail, but also

incoming mail. We point out that the Martinez decision did not

address inmate-to-inmate correspondence. We note also, for

comprehensiveness, that Abbott expressly overruled Martinez to

the extent that it might support the drawing of a "categorical

distinction between incoming correspondence from prisoners . . .

and incoming correspondence from nonprisoners." Abbott, supra

at 413-414.

For the reasons stated, we discern no error in the denial

of the motion to suppress.

2. Other errors. a. Jury instructions. The defendant

argues error in the absence of an instruction on involuntary

manslaughter based on reckless and wanton conduct. Because the

defendant did not specifically request this instruction at

trial, or object to the charge on the ground of its absence, we
25

review whether there was error, and if so, whether it created a

substantial likelihood of a miscarriage of justice. See

Commonwealth v. Tolan, 453 Mass. 634, 648 (2009).

"An instruction on [involuntary] manslaughter is required

where any view of the evidence will permit a finding of

manslaughter and not murder." Commonwealth v. Sires, 413 Mass.

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

instruction is supported by the evidence, all reasonable

inferences must be resolved in favor of the defendant."

Commonwealth v. Vanderpool, 367 Mass. 743, 746 (1975). As

relevant here, "[i]nvoluntary 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."21 Id. at 747. However,

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

is not entitled to an instruction on manslaughter."

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

The defendant's claim that he was entitled to an

instruction on involuntary manslaughter flows in part from his

contention that the shooting could have been accidental. In

21
Involuntary manslaughter may be based on one other
theory, namely, an unintentional killing resulting from "a
battery not amounting to a felony which the defendant knew or
should have known endangered human life." Commonwealth v.
Sanna, 424 Mass. 92, 105 (1997), quoting Commonwealth v. Pierce,
419 Mass. 28, 33 (1994).
26

that regard, he points out that several witnesses, Harris,

Cooke, and Bamber, testified that the victim's automobile moved

before the gun discharged. Thus, the defendant contends, the

movement of the victim's automobile could have startled him or

caused his hand to jerk in such a way that the gun "went off."

This assertion of an accidental shooting is nothing more than a

recasting of the argument made below that correctly was rejected

by the trial judge. See Evans, 390 Mass. at 151-152 ("A

defendant who kills a victim in the commission or attempted

commission of a robbery, while the defendant is armed with a

gun, is guilty of murder by application of the felony-murder

rule. . . . The fact that, according to the defendant, the gun

was discharged accidently, is of no consequence").

The defendant also contends that an involuntary

manslaughter instruction based on wanton or reckless conduct was

warranted because there was evidence that he was not engaged in

the predicate felony, namely, attempted armed robbery.

Specifically, the defendant asserts that the jury could have

concluded, based on an alternative view of the evidence, that

the defendant did not intend to rob the victim. He points to

Chase's testimony that before the shooting, he heard the

defendant say, "Open the door or I'll kill you," and Bamber, who

heard someone state, "Unlock the door before I shoot." This

testimony, he asserts, contradicted the only evidence of an
27

attempted robbery, which the defendant states was Cooke's

testimony that the defendant said something to the effect of,

"Give me what you have." Certainly, the jury were free to

reject Cooke's testimony. The defendant's argument, however,

ignores other evidence of his intent to rob, namely, his letter

in jail to his girl friend in which he complained that he "hated

being broke," that she reminded him that he "wasn't shit and

. . . didn't have shit," and that these circumstances caused him

"to not think clearly and to go out and do some dumb shit."

Defense counsel argued in his closing that the letter should not

be construed as inculpatory, but the defendant did not testify.

Nor was evidence presented to refute the reasonable inference of

a financial motive for attempted robbery that the jury could

have drawn from the letter's content. Thus, contrary to the

defendant's contentions, no view of the evidence supported an

involuntary manslaughter instruction on the theory that an

attempted armed robbery had not occurred.

Assuming, however, the absence of evidence of an intent to

rob the victim, the defendant does not explain how his conduct

otherwise qualified as wanton or reckless. It was undisputed

that whoever killed the victim had a gun because, irrespective

of what any witnesses saw, the unchallenged evidence of the

medical examiner established that the victim had been shot and

died as a result of a gunshot wound. There was no error in the
28

judge not instructing, sua sponte, on involuntary manslaughter

based on wanton or reckless conduct.

b. Ineffective assistance of trial counsel. The defendant

argues that his trial counsel was constitutionally ineffective

because she did not request a jury instruction on involuntary

manslaughter based on wanton or reckless conduct. Where we have

reviewed and rejected the defendant's contention that an

involuntary manslaughter instruction based on wanton or reckless

conduct was warranted, this claim cannot serve as the basis for

a claim of ineffective assistance of trial counsel. See

Commonwealth v. Silva, 455 Mass. 503, 528 (2009).

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

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

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

relief.

Judgments affirmed.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2792027. Public record. Not legal advice.