Commonwealth v. Mendez

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SJC-11869

SJC-11870

COMMONWEALTH vs. CHARLES MENDEZ

(and eleven companion cases1).

Bristol. October 11, 2016. - February 22, 2017.

Present: Gants, C.J., Hines, Gaziano, Lowy, & Budd, JJ.

Homicide. Firearms. Robbery. Assault and Battery by Means of

a Dangerous Weapon. Felony-Murder Rule. Constitutional

Law, Search and seizure, Reasonable suspicion. Search and

Seizure, Reasonable suspicion. Practice, Criminal, Capital

case, Motion to suppress, Trial of indictments together,

Argument by prosecutor, Instructions to jury. Witness,

Credibility. Jury and Jurors.

Indictments found and returned in the Superior Court

Department on January 7, 2011, and February 11, 2011.

Pretrial motions to suppress were heard by Renee P. Dupuis,

J., and a motion for joinder was also heard by her; and the

cases were tried before D. Lloyd Macdonald, J.

Cathryn A. Neaves for Charles Mendez.

Jennifer H. O'Brien for Tacuma Massie.

Yul-mi Cho, Assistant District Attorney, for the

Commonwealth.

1

Five against Charles Mendez and six against Tacuma Massie.

2

BUDD, J. On the evening of November 18, 2010, Edward

Platts was shot and killed while sitting in his motor vehicle at

a housing complex in Fall River. The defendants, Charles Mendez

and Tacuma Massie, were each indicted on charges of (1) murder

in the first degree2; (2) carrying a firearm without a license;

(3) carrying a loaded firearm without a license; and (4) armed

robbery. They additionally were charged with assault and

battery by means of a dangerous weapon and armed robbery on

separate indictments in connection with a separate incident

involving a different individual. The motion judge denied the

defendants' motions to suppress evidence seized in connection

with their warrantless stop. At the conclusion of a joint jury

trial in September, 2013, the defendants were convicted of all

charges.

Each defendant filed a timely notice of appeal. Both

assert the following errors: the denial of his motion to

suppress; the joinder at trial of the indictments for two

separate incidents; and portions of the prosecutor's closing

argument. Massie further argues that there was insufficient

evidence to convict him of the armed robbery and felony-murder.

Each defendant separately asserts additional errors pursuant to

Commonwealth v. Moffett, 383 Mass. 201, 208 (1981).

2

Both defendants were charged on a theory of felony-murder;

Mendez was also charged on a theory of deliberate premeditation.

3

We affirm the defendants' convictions and decline to

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

1. Background. We summarize the facts in the light most

favorable to the Commonwealth, reserving certain details for

discussion of specific issues.

On the evening of November 18, 2010, just after 6 P.M., the

defendants ambushed and robbed Ryan Moitoso in a parking lot.

Moitoso thought he was meeting Mendez's girl friend to sell her

marijuana. The girl friend drove the defendants near the area

where she was to meet Moitoso and let them out of her vehicle.

As Moitoso spoke with the girl friend, the defendants approached

him from behind. One of them hit him in the head with a hard

metal object and told him to empty his pockets. Moitoso turned

over some cash and marijuana, and heard a clicking noise that

sounded like a gun being cocked, before being allowed to return

to his vehicle. The defendants got back into the girl friend's

vehicle, and she drove away. When she asked what had happened,

one of the defendants replied, "That's life," and tossed a bag

of marijuana into the front passenger area.

Next, the girl friend dropped the defendants off at a

nearby housing complex where Massie had arranged to meet Platts

(victim) on the pretext of wanting to make a marijuana purchase.

The defendants intended to rob the victim of the approximately

$4,000 that, Massie had learned, he was carrying that day.

4

Prior to the meeting, a witness was parked in the housing

complex and, while sitting in his vehicle, observed two men

fitting the description of the defendants walk by him. The

victim, who had a puppy with him, parked his vehicle behind the

witness's vehicle. The witness then observed the same two men

walk toward the back of his vehicle. Within seconds, the

witness heard a gunshot and a vehicle engine accelerate, and

then he felt the victim's vehicle hit the back of his vehicle.

The witness telephoned 911 and told the dispatcher that a man

had been shot. A resident of the complex looked out of her

window at the sound of the gun shot to observe an individual

matching Mendez's description get out of the passenger side of

the victim's vehicle and quickly leave the scene carrying

something clutched to his chest.

In the meantime, Mendez's girl friend received several

telephone calls from Massie between 6:41 and 6:49 P.M. She

returned to the complex and picked up both Massie and Mendez,

pulling away quickly from the curb where they entered her

vehicle. A State trooper who was in the housing complex

investigating the 911 call observed the vehicle's hasty

departure, and followed it. See part 2.a, infra.

When the defendants were arrested, both were carrying

handguns; Massie's was loaded. Massie had more than $4,000 in

cash, Mendez's clothes were stained with the victim's blood, and

5

police found the victim's puppy in the vehicle. Police found

Mendez's hat in the victim's vehicle.

The victim was shot at close range behind his right ear as

he sat in his vehicle. At trial, Mendez claimed that the victim

had drawn a gun on him and, after a struggle, he shot the victim

in self-defense. He also claimed that the handgun that he had

had in his possession when he was apprehended belonged to the

victim.

2. Discussion. a. Motion to suppress. The defendants

claim error in the denial of their motions to suppress evidence

seized as a result of a warrantless stop that took place soon

after the shooting. The constitutionality of the stop depends

on the police officer having reasonable suspicion of criminal

activity at the time it occurred. Commonwealth v. DePeiza, 449

Mass. 367, 371 (2007). Reasonable suspicion "must be grounded

in 'specific, articulable facts and reasonable inferences

[drawn] therefrom' rather than on a 'hunch.'" Id., quoting

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

When reviewing a ruling on a motion to suppress, "we accept

the [motion] judge's subsidiary findings of fact absent clear

error and leave to [that] judge the responsibility of

determining the weight and credibility to be given oral

testimony presented at the motion hearing." Commonwealth v.

Wilson, 441 Mass. 390, 393 (2004). However, "[w]e review

6

independently the application of constitutional principles to

the facts found." Id.

We summarize the facts found by the motion judge. After

the witness's vehicle was hit by the victim's, the witness

telephoned 911 to report that a person had been shot in the head

in his vehicle and was dead, and that the individuals involved

had fled.3 A State police trooper with the violent fugitive

apprehension section, who was dressed in plain clothes and

traveling nearby in an unmarked police cruiser, heard the police

transmission of this report and headed toward the housing

development. Approximately two blocks from the development he

observed a person moving quickly toward a parked vehicle.

Without stopping, the trooper relayed the registration plate

number and learned that the vehicle was registered to a woman

with no criminal history. Moments later, and less than ten

minutes after the initial 911 transmission, he arrived at the

complex and began to patrol, looking for suspicious activity.

As the trooper drove through the housing complex, which he

found to be unusually quiet, he observed an individual, later

identified as Mendez, make a "beeline" to a white Honda Civic

automobile that was stopped at the curb with its engine running.

Mendez entered at the rear passenger side of the vehicle, which

3

The witness told the 911 operator that the perpetrator or

perpetrators fled in another motor vehicle. In fact, the

defendants initially fled on foot.

7

started to pull away quickly, before Mendez had fully entered or

closed the door. Because of what appeared to the trooper to be

a very unusual absence of any other people and lack of any other

activity on the streets or sidewalks in the housing complex, and

the vehicle's quick departure from the area, the trooper

followed the vehicle while it traveled in a "serpentine route,"

meandering through the city streets.4 Meanwhile, police who had

responded to the scene at the housing complex confirmed to the

trooper that a man had been shot in the head and killed.

While following the vehicle, the trooper reported its

registration plate number and learned that an individual

associated with the address of the vehicle's owner had "lots of

violence" on his record, including a firearms charge, and

4

Mendez claims that it was error for the motion judge to

find that there were no other suspect vehicles in the area when

the trooper saw the white Civic because the trooper earlier had

observed and relayed the registration plate number of another

vehicle that was located two blocks away from the complex and

had its motor running. There was no error. The motion judge

made clear in her findings that, aside from the first vehicle,

which the trooper had eliminated from suspicion before he even

saw Mendez, the trooper "did not observe a pedestrian, a car

containing people, a running motor vehicle or any other normal

activity for that time of day in such a large housing complex."

Additionally, Mendez points to no testimony that indicates this

vehicle's motor was running. Mendez further contends that there

was no basis for the judge's finding that residents of the

housing development stayed inside after the shooting because

they were afraid of being shot. This finding, even if

conclusory, is a reasonable inference given the uncontested fact

that, according to the trooper and credited by the judge, there

was no activity to speak of in the area at the time the white

vehicle made its hasty exit.

8

pending drug charges. The trooper, who could see that there

were two persons seated in the back of the vehicle, radioed for

backup. Approximately four miles away from the housing complex,

the driver of the vehicle stopped in front of a three-family

home but kept the motor running. As the trooper was without

backup or a place to park, he stopped his vehicle in the middle

of the street and waited. Approximately fifteen to thirty

seconds later, the two defendants got out of the back seat of

the vehicle at the same time and turned to face him. They were

speaking to one another and both had their hands in their jacket

pockets. In fear of his safety, the trooper got out of his

vehicle, showed his badge and said, "Police, don't move." The

two men fled in opposite directions. Mendez ran toward the

trooper but soon returned to the white vehicle, getting in and

telling the driver to "take off." The trooper drew his weapon

and ordered the driver, later identified as Mendez's girl

friend, to shut off the motor; she did so. Once another officer

arrived, police recovered a handgun that was tucked into

Mendez's waistband.

In the meantime, a third officer saw Massie, who was less

than one block away from the white vehicle and running with one

hand in his pocket. The officer chased him and ordered him to

stop. Massie did not comply, but he was apprehended; he was

carrying a loaded semiautomatic pistol and cash.

9

All parties agree that both defendants were seized in a

constitutional sense when the trooper announced that he was a

police officer and ordered the men not to move. On appeal, the

defendants argue that the trooper stopped them on a hunch rather

than reasonable articulable suspicion of criminal activity.

They claim that the information available to the trooper should

not have caused him to follow them; that that they could just as

easily have been on a "leisurely" drive through the city,

without any particular place to be; and that when the vehicle

finally stopped, all the trooper observed was two men getting

out and looking into the headlights of a vehicle parked behind

them in the street, with their hands in their pockets due to the

cold weather.

Given that "[s]eemingly innocent activities taken together

can give rise to reasonable suspicion," Commonwealth v. Watson,

430 Mass. 725, 729 (2000), and that "[t]he gravity of the crime

and the present danger of the circumstances may be considered in

the reasonable suspicion analysis," Commonwealth v. Depina, 456

Mass. 238, 247 (2010), the trooper clearly had reasonable

suspicion for the stop. See Commonwealth v. Meneus, 476 Mass.

231, 239 (2017) (violent nature of crime relevant when coupled

with "totality of the information known to police, including the

defendant's geographical and temporal proximity to the scene of

10

the crime and his suspicious behavior in the wake of the

shooting").

Police received a 911 call from a witness who identified

himself and who relayed firsthand knowledge of what he believed

to be a fatal shooting in a housing complex. See Commonwealth

v. Stoute, 422 Mass. 782, 790-791 (1996). In less than ten

minutes, the trooper was driving through the housing complex,

having already eliminated a suspect but on the lookout for

others.5 See Depina, 456 Mass. at 246. Mendez's rush to enter

the motor vehicle and its subsequent hasty exit comprised the

only activity that the trooper observed in the housing complex.6

See Commonwealth v. Quinn, 68 Mass. App. Ct. 476, 480 (2007).

5

Massie places much weight on the fact that the witness's

report of two people fleeing in a vehicle immediately after he

heard the gunshot was at odds with the trooper's observation

(and suspicion) of a vehicle pulling quickly away almost ten

minutes later. As it turned out, the defendants initially fled

on foot. That the witness did not get the description exactly

right about what happened in the immediate aftermath of the

shooting does not mean that the trooper was obliged to ignore

his own observations. See Commonwealth v. Mercado, 422 Mass.

367, 368, 369-371 (1996) (finding officer's suspicion reasonable

despite conflicting descriptions of shooting suspects).

6

Massie's reliance on Commonwealth v. Warren, 475 Mass. 530

(2016), is misplaced. There we held that it was unreasonable to

stop pedestrians twenty-five minutes after, and one mile away

from, a breaking and entering where they did not match the

description provided to police. Id. at 535-536. Here, the

white vehicle was temporally and geographically closer to the

crime and there was no description of the suspects. Compare

Commonwealth v. Depina, 456 Mass. 238, 246-247 (2010)

(reasonable to stop person matching vague description of shooter

when found approximately ten minutes after gunfire and three

blocks away).

11

He did not need reasonable suspicion to follow the motor

vehicle. See Commonwealth v. Williams, 422 Mass. 111, 116

(1996) ("No degree of suspicion, reasonable or otherwise, was

constitutionally required for the police to commence

surveillance" by following suspect vehicle).

As the trooper trailed the defendants for eight and one-

half minutes and approximately four miles, he learned additional

information that contributed to his suspicion. See Commonwealth

v. Wren, 391 Mass. 705, 707 (1984) ("[a] hunch will not

suffice"). The vehicle he was following had returned to a

normal speed but was traveling in a "serpentine route" through

the city, without an apparent destination. See Watson, 430

Mass. at 730. When he relayed the vehicle's license plate, he

learned that it was associated with a person whose criminal

record reflected assault and battery and firearms charges.7 See

Commonwealth v. Wright, 85 Mass. App. Ct. 380, 383 (2014).

Finally, police who had responded to the scene at the housing

7

The defendants argue that it was error to find that the

criminal record could influence the trooper's calculus because

all of the individual's violence-related charges had been

dismissed, including the firearms charge. There was no error;

police knowledge that a criminal history includes weapons-

related charges can add to reasonable suspicion. See

Commonwealth v. Gomes, 453 Mass. 506, 512-513 (2009). See also

Commonwealth v. Dasilva, 66 Mass. App. Ct. 556, 561 (2005)

("police knowledge of a person's arrest record or unspecified

'criminal record' [can] be considered in a reasonable suspicion

evaluation").

12

complex confirmed to the trooper that a person had been fatally

shot in the head. See Mercado, 422 Mass. at 368-370.

By the time Massie and Mendez, who had simultaneously

gotten out of their vehicle, stood face-to-face and staring at

the trooper with their hands in their pockets, the fear that the

two had participated in the killing and presented a possible

threat to his safety and that of the public was eminently

reasonable. See Scott, 440 Mass. at 648, citing Terry v. Ohio,

392 U.S. 1, 21 (1968) (court analyzes justification for stop at

time it occurs).8

b. Joinder of charges. The defendants challenge the

motion judge's decision to join for trial the charges related to

the robbery of Moitoso with those related to the robbery and

shooting of Platts, arguing that it amounted to an unfairly

prejudicial admission of propensity evidence. We review the

motion judge's decision for an abuse of discretion. See

Commonwealth v. Gray, 465 Mass. 330, 335, cert. denied, 134

S. Ct. 628 (2013).

8

Massie argues that his subsequent stop was unreasonable

because the officer who apprehended him had no reasonable

suspicion to do so as all he observed was Massie running with

his hand in his front right pocket. This argument has no merit;

he had already been stopped by the trooper. In any case, the

trooper's knowledge that Massie was a suspect in a shooting is

imputed to the other officer. See Commonwealth v. Quinn, 68

Mass. App. Ct. 476, 480-481 (2007). The subsequent frisk was

likewise justified. See Commonwealth v. Vasquez, 426 Mass. 99,

102-103 (1997).

13

Upon motion, joinder is appropriate where offenses are

related unless such joinder "is not in the best interests of

justice." Mass. R. Crim. P. 9 (a) (3), 378 Mass. 859 (1978).

Offenses are related for the purposes of joinder "if they are

based on the same criminal conduct or series of criminal

episodes connected together or constituting parts of a single

scheme or plan" (citation omitted). Commonwealth v. Hernandez,

473 Mass. 379, 393 (2015). Factors to take into consideration

include "factual similarities, closeness of time and space, and

'whether evidence of the other offenses would be admissible in

separate trials on each offense'" (citation omitted). Id.

Here there was considerable evidence demonstrating that the

two incidents were related. In each case, a jury could have

found that the defendants set up meetings with the victims under

the pretense of buying marijuana and instead robbed them using a

gun (even though the second robbery ended with the victim being

killed). In addition, the events took place within less than

one hour of each other and within a ten-minute drive of each

other. See Hernandez, 473 Mass. at 393 (separate robberies

occurring within time span of five hours and sharing common

method of coercion were related for purposes of joinder).

Further, evidence of each robbery would be admissible in

the trial of the other if the trials were separated. Although

evidence of one crime is inadmissible to show a propensity to

14

commit other such crimes, prior bad act evidence may be

admissible if relevant for another purpose such as motive, state

of mind, or a common scheme or pattern. Commonwealth v. Walker,

442 Mass. 185, 202 (2004). Evidence of the robbery of the

victim is certainly reflective of a common scheme or pattern in

a trial of the robbery of Moitoso, and vice versa.

Nor have the defendants shown that they were unfairly

prejudiced by the joinder. See Commonwealth v. Sullivan, 436

Mass. 799, 805 (2002). The judge asked the venire during voir

dire to comply with an instruction that evidence of each robbery

be considered independently, and that the evidence of one not be

taken as proof of propensity to commit the other. During his

instructions to the jury prior to deliberations, the judge

explained that evidence of the two incidents was not to be used

to prove that the defendants had a propensity to commit the

crimes of armed robbery or murder and that they were to consider

each episode separately. "The jury are presumed to follow the

judge's instructions." Commonwealth v. Andrade, 468 Mass. 543,

549 (2014).

The motion judge did not abuse her discretion in joining

the indictments for trial.

c. Closing argument. The defendants point to two aspects

of the prosecutor's closing argument as error.

15

i. Comments on Mendez's testimony. Both defendants argue

that the prosecutor made improper comments in his closing

regarding Mendez's testimony.9 During direct examination, Mendez

admitted to assaulting and robbing Moitoso. He testified that

the plan then was to meet the victim at the housing development

and purchase approximately twelve pounds of marijuana from him.

Mendez further testified that while he was in the victim's

vehicle the two men had a disagreement, the victim pulled out a

gun, and, in a struggle for the gun, Mendez shot the victim in

self-defense. He went on to say that after the shooting, he got

out of the vehicle with the gun, then returned for his hat

(which had fallen off) but instead grabbed the puppy. He then

met up with Massie, who had been waiting with the over $4,000 in

cash they had saved to buy the marijuana.

On cross-examination, Mendez testified that his initial

account to police after his arrest was not consistent with his

trial testimony because he had lied to the investigators on the

night of the victim's death. Among other things, he told police

that because of his drug use, he was unable to recall the events

of the evening, and specifically did not remember going to a

housing complex, carrying a gun, or being involved in a

shooting.

9

Massie did not testify, but his counsel endorsed Mendez's

testimony in closing argument.

16

In his closing argument, the prosecutor suggested that

Mendez conformed his testimony to the Commonwealth's evidence:

"[W]hen you talk about the night when he got caught

with the gun on him, there's a puppy, and he's brought down

to the station, oh, I lied about everything. Of course he

lied about everything because he didn't know what we knew,

the police. And of course, then as the evidence is

developed, he now fits it all in a nice little package for

you. . . . Evidence is what is said, not then what you

want to try to shape it at the end." (Emphases added.)

The defendants claim that the prosecutor's statements

improperly commented on Mendez's right to confront witnesses by

being present in the court room during the trial. Because

neither defendant objected to the closing argument, we review to

determine if there was error or misconduct, and if so, whether

it created a substantial likelihood of a miscarriage of justice.

Commonwealth v. Taylor, 455 Mass. 372, 377 (2009).

In arguing error, the defendants point to Commonwealth v.

Person, 400 Mass. 136 (1987), and Commonwealth v. Alphonse, 87

Mass. App. Ct. 336 (2015), where convictions were overturned

because, in each case, the prosecutor improperly argued that the

defendant tailored his testimony to match the evidence

presented. These cases are distinguishable.

"[A] prosecutor may, if there is a basis in the evidence

introduced at trial, attack the credibility of a defendant on

the ground that his testimony has been shaped or changed in

response to listening to the testimony of other witnesses."

17

Commonwealth v. Gaudette, 441 Mass. 762, 767 (2004). See

Commonwealth v. Sherick, 401 Mass. 302, 305 (1987). Here, where

the defendant made pretrial statements to police that were

different from his trial testimony, the prosecutor had a basis

in the evidence for pointing out that his trial testimony did

not match his prior statements to police, and instead conformed

to the Commonwealth's evidence. By contrast, in Person, 400

Mass. at 137, 138, 142, the defendant made no pretrial

statements; thus, while the prosecutor intimated that he had

fabricated his testimony, there was no evidence presented at

trial to support this argument. Accord Alphonse, 87 Mass. App.

Ct. at 336, 339 (no evidence to support prosecutor's assertion

that defendant had tailored his version of events to testimony

of other witness). Given Mendez's pretrial statements in this

case, the prosecutor fairly commented on "the quality of the

evidentiary picture the defendant was trying to paint."

Commonwealth v. Moore, 408 Mass. 117, 132 (1990). There was no

error.

ii. Arguing facts not in evidence. Massie asserts that

there was no adequate basis in evidence for the prosecutor to

argue in his closing that Massie had been in the back seat of

18

the victim's vehicle, or that Mendez had shot the victim because

he wanted the puppy.10

"[A] prosecutor may analyze the evidence and suggest

reasonable inferences the jury should draw from that evidence."

Commonwealth v. Semedo, 456 Mass. 1, 13 (2010). Here, there was

evidence from which the jury could infer that Massie had been

seated in the back seat of the victim's vehicle just before the

shooting, including the fact that Massie set the meeting up via

several telephone calls to the victim, and the witness

testified that he saw both men walk toward the victim's vehicle

just before the gun was fired. To be sure, there was evidence

tending to prove that Massie was not in the vehicle at the exact

time of the shooting (e.g., the fact that there was no blood on

his clothing, and only Mendez was seen exiting the vehicle after

the shot had been fired). However, contrary to Massie's claim,

this evidence supports, rather than negates, the prosecutor's

version of events, i.e., that Massie left the vehicle with the

cash prior to the shooting.

There was also evidence from which the jury could infer

that Mendez shot the victim because of the puppy. There was

evidence that Massie had left the vehicle with the cash the

10

The prosecutor stated: "Massie now has got the money,

he's out of the car [running]. [Mendez] . . . now wants the

dog. And a tussle, struggle, whatever, you're not getting the

dog. Bang, he's shot in the head. What does he do, and why is

that, as you know why, the purpose was what he wanted."

19

defendants had planned to steal, and it is a fair inference that

there would have been little, if anything, left to argue about.

The fact that Mendez shot the victim and then took the puppy

provided further evidence from which the jury could infer that

Mendez shot the victim because he wanted the puppy.11 There was

no error.

d. Insufficient evidence. Massie argues that the evidence

in support of his convictions of the armed robbery and felony-

murder of the victim was impermissibly thin. He claims that the

$4,120 in cash he was carrying at the time of his arrest could

not have come from the victim because it was not folded and

sectioned as described by a witness who testified to seeing the

victim with the cash earlier in the day. This, he asserts, plus

the fact that other items in the vehicle were not taken ($124 in

cash found in the victim's pocket and several small bags of

marijuana), proves the defendants did not rob, or intend to

murder, the victim. To succeed in a claim for insufficient

evidence, Massie must show that, in viewing the evidence in the

light most favorable to the Commonwealth, no rational trier of

fact could have found the essential elements of the crimes

11

The prosecutor offered a hypothetical scenario complete

with a hypothetical statement made by the victim before he was

shot. The trial judge appropriately reminded the jury that

closing arguments are not evidence, and instructed them to

ignore the suggestion that the victim had told Mendez, "You're

not getting the dog."

20

beyond a reasonable doubt. See Commonwealth v. Latimore, 378

Mass. 671, 677-678 (1979). This he is unable to do.

Evidence of the armed robbery of the victim viewed in the

light most favorable to the Commonwealth included the

following.12 Massie and Mendez earlier robbed Moitoso with a

gun. Thereafter, Massie arranged to meet the victim at the

housing complex. He knew that the victim had a large sum of

cash with him through conversations the two had earlier in the

day. Massie was seen walking toward the victim's vehicle and

was carrying a gun.

That there was an inconsistency between a witness's

observation and the actual organization of the cash when it was

recovered from Massie13 does not prove that the victim was not

robbed. "If the evidence lends itself to several conflicting

interpretations, it is the province of the jury to resolve the

discrepancy and determine where the truth lies" (quotation and

citation omitted). Platt, 440 Mass. at 401. Here there was

more than enough circumstantial evidence for the jury to

12

To make a case for felony-murder, the Commonwealth must

only establish that Massie participated as a joint venturer in

an armed robbery of the victim, and that the victim was killed

in furtherance of that robbery. See, e.g., Commonwealth v.

Kilburn, 426 Mass. 31, 34-37 (1997).

13

A witness testified that she had seen victim with his

money wrapped in blue and manila rubber bands earlier in the

day. The cash recovered from Massie was folded and wrapped in a

single red rubber band.

21

conclude that both defendants committed armed robbery against

the victim. They could have concluded that the victim

reorganized the cash prior to meeting with the defendants or

that the witness who saw the cash was mistaken. The jury also

could have concluded that departing quickly with the large

amount of cash was more important than grabbing the small bags

of marijuana and checking the victim's pockets for additional

money.

"Whether an inference is warranted or is impermissibly

remote must be determined, not by hard and fast rules of law,

but by experience and common sense" (citation omitted).

Commonwealth v. Giang, 402 Mass. 604, 609 (1988). Thus,

although the jury were free to adopt the defendants' version of

events, they were also free to reach a different rational

result. Platt, 440 Mass. at 401.

e. Moffett claims. Each defendant raises separate

arguments pursuant to Moffett, 383 Mass. at 208. First, Mendez

complains that his due process rights were violated when a

witness to the Moitoso robbery was allowed to testify because he

was not credible. The credibility of witnesses is for the jury

to decide. Commonwealth v. Watkins, 473 Mass. 222, 229 (2015).

The defendants had the opportunity to explore the issue of the

witness's credibility during cross-examination, and argue it

during closing arguments. There was no error.

22

Mendez next argues that his pretrial counsel was

ineffective where, at a motion to suppress hearing, the attorney

told the judge that he was unprepared to comment on the

Commonwealth's motion for joinder. As the court gave counsel

the opportunity to substantively oppose the motion at a later

date both orally and in writing, the argument is without merit.

Mendez also contends that he was deprived of the right to

an impartial jury where the Commonwealth improperly staged a

vehicle for the jury to observe during a view of the crime

scene. Upon objection, the judge struck that portion of the

view, and told the jury to disregard it; Mendez does not argue

that the jury were unable to do so. See Andrade, 468 Mass. at

549.

Finally, Mendez claims that it was error for the trial

judge to refuse to remove a juror who asked a question during

the view that he contends demonstrated a "pro-government

mindset."14 The judge denied the request, concluding that the

juror's question did not "reasonably suggest[] prejudice." The

judge's decision is entitled to deference where he had "the

advantage of face to face evaluation." See Commonwealth v.

Peppicelli, 70 Mass. App. Ct. 87, 94 (2007) (decision whether to

14

After counsel pointed out security cameras at the housing

complex, a juror asked counsel if they had been working on the

day in question.

23

dismiss juror reviewed for abuse of discretion or other error of

law). There was no abuse of discretion.

Massie's three Moffett claims concern the jury

instructions. He first argues that the immunized witness

instruction regarding Moitoso was reversible error, as it

improperly bolstered his credibility. The instruction

accurately described how Moitoso obtained immunity, and it was

preceded by an instruction that the jury may consider any

promises, rewards, or inducements made when assessing witness

credibility. See Commonwealth v. Dyous, 436 Mass. 719, 727

(2002) ("[W]e do not require that a judge give cautionary

instructions specifically mentioning a particular immunized

witness. . . . Rather we consider whether the charge, as a

whole, adequately covers the issue" [quotation and citations

omitted).

Second, Massie contends that the judge failed to instruct

the jury that the Commonwealth had the burden of proving its

case against him on a theory of felony-murder beyond a

reasonable doubt. In fact, the judge properly instructed the

jury, first describing the Commonwealth's burden of proof and

later describing what the Commonwealth had to prove.

Finally, Massie argues that, regarding the lesser included

offense of felony-murder in the second degree, the judge should

have instructed the jury that if they found the elements were

24

satisfied, they were required to find him guilty of the lesser

included offense. This is an inaccurate statement of the law,

as jurors have a duty to return a guilty verdict of the highest

crime proved beyond a reasonable doubt, here felony-murder in

the first degree. Commonwealth v. Kirwan, 448 Mass. 304, 319

(2007). There was no error.

f. Review pursuant to G. L. c. 278, § 33E. We have

reviewed the entire record and find no reason to exercise our

extraordinary power to reduce the verdict for either defendant

or grant a new trial.

Judgments affirmed.