# Commonwealth v. Chesko

> Massachusetts Supreme Judicial Court · November 30, 2020

URL: https://www.frixlaw.com/law-library/cases/4638386

## Case

- **Court:** Massachusetts Supreme Judicial Court
- **Decided:** November 30, 2020
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## 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revision and are superseded by the advance sheets and bound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-12030

COMMONWEALTH vs. LEEANNE CHESKO.

Worcester. February 14, 2020. - November 30, 2020.

Present: Gants, C.J., Lenk, Budd, Cypher, & Kafker, JJ. 1

Homicide. Felony-Murder Rule. Robbery. Cellular
Telephone. Evidence, Medical record, Privileged record,
Communication between patient and psychotherapist, State of
mind, Hearsay, Inference. Practice, Criminal, Instructions
to jury, Assistance of counsel, Capital case.

Indictment found and returned in the Superior Court
Department on September 23, 2011.

The case was tried before Richard T. Tucker, J.

Richard L. Goldman for the defendant.
Nathaniel R. Beaudoin, Assistant District Attorney, for the
Commonwealth.

CYPHER, J. A jury convicted the defendant, LeeAnne Chesko,

of murder in the first degree on the theory of felony-murder,

1 Chief Justice Gants participated in the deliberation on
this case prior to his death.
2

with armed robbery as the predicate felony, after the victim,

Francis P. Spokis, was found dead in his home. 2 The defendant

argues on appeal that the judge's failure to instruct on felony-

murder in the second degree, the admission of the defendant's

cell site location information (CSLI), and the judge's

instruction on inferences each resulted in a substantial

likelihood of a miscarriage of justice. She further argues that

it was prejudicial error for the judge to fail to admit a

medical report in evidence and for the judge to restrict the

defendant's cross-examination of a witness. The defendant also

maintains that trial counsel provided ineffective assistance.

In addition, she urges this court to exercise its authority

under G. L. c. 278, § 33E, to reduce her verdict or order a new

trial. We affirm the defendant's conviction. After a thorough

review of the record, we also decline to exercise our authority

under G. L. c. 278, § 33E.

Background. We summarize the facts that the jury could

have found at trial, reserving certain details for our

discussion of the legal issues.

1. Commonwealth's evidence. Sometime around June to July

2011, the defendant and her boyfriend, James Rutherford, came up

2 Indictments charging the defendant with armed robbery,
home invasion, and aggravated assault and battery by means of a
dangerous weapon were nol prossed before jury empanelment.
3

with a plan to rob the victim, who lived in Rutland.3 The victim

and the defendant had an ongoing relationship, in which he

provided the defendant with drugs or money in exchange for

sexual favors. In the spring of 2011, the victim sold a parcel

of land located behind an auto body shop that he owned on

Franklin Street in Worcester, for $300,000. The sale was

published in a local newspaper. Testimony showed that the

defendant and Rutherford planned to rob the victim in early July

while his wife and child were away on vacation. They had to

abandon their first attempt, only to return two days later to

carry out the robbery.

At the time, Rutherford lived in Worcester, and his former

roommate, Rody Zapata, who testified under a cooperation

agreement with the Commonwealth, presented the details of the

first attempt at the robbery. On multiple occasions during June

and July 2011, Rutherford described a robbery plan to Zapata. 4

The defendant took part in three or four of these conversations.

3 James Rutherford was convicted in a separate trial of
murder in the first degree on the theories of deliberate
premeditation and felony-murder, and his conviction was affirmed
on appeal. Commonwealth v. Rutherford, 476 Mass. 639, 640
(2017).
4 This testimony was bolstered by the testimony of two
acquaintances of the defendant. One testified that on July 1,
2011, the defendant asked him to help her commit a robbery with
Rutherford, and the other testified that about ten days before
the murder, the defendant told him that she knew someone with a
lot of money whom she wanted to rob.
4

She knew the person who would be robbed, but did not want that

person to know she was involved. Zapata was not told who the

victim was going to be, but was told that the victim owned a

business on Franklin Street in Worcester and that he had money.

The plan was for the defendant to get high with the victim.

She would leave a door to the house open and notify Rutherford

and Zapata when to enter. Rutherford and Zapata would tie up

the victim and the defendant to make it seem that the defendant

was not involved in the robbery, and then they would drive the

victim to his auto body shop, which they would rob.

On July 4, 2011, Zapata, the defendant, and Rutherford

headed to the victim's home at around 11 A.M. to commit the

robbery. After the defendant was not able to reach the victim

on his cellular telephone (cell phone), they drove to

Rutherford's mother's house to borrow her cell phone. 5 The three

then drove to the victim's house. Rutherford parked the car on

the side of the road and got out of the car to check out the

house. Zapata testified that while he and the defendant were

alone in the car, she told him that if the victim discovered

that she was involved in the crime, they would have to "get rid

5 On July 4, 2011, there were multiple calls during the time
frame of the planned robbery from the defendant's cell phone to
the victim's cell phone. The Commonwealth presented CSLI of
these cell phone calls. The Commonwealth also presented
evidence that a call was placed from Rutherford's mother's cell
phone to the victim's cell phone on July 4, 2011, at 2:52 P.M.
5

of him; kill him." Rutherford returned to the car, and the

three drove to return Rutherford's mother's cell phone. The

three then drove back to the victim's house, and Rutherford

parked the car in a nearby parking area. Zapata and Rutherford

got out of the car, but Zapata angered the defendant when he no

longer wanted to participate because Rutherford "started pulling

out knives." The defendant and Rutherford did not go forward

with their plan at that time.

On or about July 5, 2011, Rutherford visited his friend,

Luz Hernandez, at her apartment in Worcester. He asked her if

he could use the storage unit on her back porch for the purpose

of storing stolen items from a robbery he planned to commit. He

told Hernandez that he planned to commit the robbery the

following day while the victim's family was away on vacation and

that a friend might help him commit the crime. Hernandez gave

Rutherford a key to the storage unit.

Zapata testified that a "couple days after" July 4, 2011,

Rutherford told him that he committed the robbery and "offed"

the victim.

Evidence at trial supported that the victim's murder

occurred between July 5 and July 6, 2011. On July 5, 2011,

Rutherford first went to his mother's house in the afternoon to

borrow duct tape, and he returned that evening with the

defendant. At around 10 P.M. on July 5, 2011, surveillance
6

video from a convenience store in Holden showed the defendant

and Rutherford drive into the store's parking lot. The video

showed the defendant leave the car and walk toward where the pay

telephone was located on the property, and then return to the

car. Evidence showed that the victim's cell phone received

three calls from the store's pay telephone at around 10 P.M.

Hernandez testified that on the afternoon of July 6, 2011,

Rutherford called her from the defendant's cell phone to tell

her that he was at her apartment. Hernandez returned to her

apartment and saw the defendant sitting in the front passenger's

seat of a car while Rutherford brought items from the car to

Hernandez's storage unit. In the subsequent days, Rutherford

brought items to Hernandez's home, including a television stolen

from the victim that Hernandez had agreed to purchase for $500.

On the afternoon of July 10, 2011, the victim's wife and

child returned home from vacation. The victim's wife had not

spoken to the victim during her vacation. When she arrived

home, she observed multiple days of mail in the mailbox, four

days of newspapers on the ground in the driveway, missing items,

and reddish-brown stains on the kitchen floor. She contacted

the police. Included among the noticed missing items was a

television, a video game system, a computer, and jewelry. The

victim's gun safe was open, and there was blood in front of the

safe. In the kitchen, officers observed the words "don't do
7

drugs" written in black marker on the tablecloth and on the

countertop and they found a "black Sharpie pen" and cap on the

kitchen floor. Blood stains were found in various rooms of the

house, and bloody footprints led down the basement stairs. The

victim was discovered, dead, at the bottom of the basement

stairs. On the floor near the victim, officers found a

comforter with blood stains on it and pieces of duct tape. The

medical examiner testified that the victim suffered multiple

stab wounds, abrasions, and lacerations, and a skull fracture.

He further testified that the victim's principal cause of death

was blood loss.

The Commonwealth presented testimony that red-brown

footprints observed throughout the victim's home were made by

women's size seven Converse shoes and men's size eleven Viking

boots, consistent with shoes that were worn by the defendant and

by Rutherford, respectively.

When searching Hernandez's apartment, police discovered

multiple items that matched items stolen from the victim's

house, including two televisions, a video game console, rifles,

and various personal items. Inside Hernandez's storage unit,

officers found firearms, ammunition, items of clothing, and a

pair of men's size eleven Viking boots and a pair of women's

size seven Converse sneakers. When police took Rutherford into

custody on July 13, 2011, officers found keys that opened the
8

lock on Hernandez's storage unit, and an ammunition canister

with what appeared to be bloody palm prints in Rutherford's car.

Deoxyribonucleic acid on the ammunition canister matched the

victim.

The Commonwealth also presented telephone call records and

CSLI evidence. The records showed that although between July 1

and July 6, 2011, the defendant's cell phone was used to call

the victim's cell phone multiple times each day, there were no

calls to the victim's cell phone after July 6, 2011. The

defendant's cell phone account was terminated on July 10, 2011.

The CSLI for the defendant's cell phone showed, in part, that on

July 4 and July 5, 2011, her cell phone moved from Worcester to

Holden and back to Worcester on both days.

2. Defendant's evidence. The defendant called expert Dr.

Roger Gray to testify about Zapata's mental health. Gray

reviewed Zapata's medical evaluation dated October 1, 2011,

opining that the information in the record was consistent with

the diagnosis of schizoaffective disorder.

Through the testimony of a forensic document examiner, the

defendant also sought to demonstrate that she did not write

"don't do drugs" in the victim's home. 6

6 The defendant also introduced testimony from a police
officer that on the night of June 29, 2011, the officer
encountered Rutherford during a periodic check of a parking lot.
A patfrisk of Rutherford turned up a pellet gun, black gloves,
9

Discussion. 1. Felony-murder instruction. The defendant

argues that the judge erred by failing to instruct the jury on

felony-murder in the second degree based on the predicate felony

of armed assault with intent to rob, which carries a maximum

sentence of twenty years in prison. See G. L. c. 265, § 18 (b).

She was not charged with armed assault with intent to rob. The

defendant contends that the lack of instruction on felony-murder

in the second degree resulted in a substantial likelihood of a

miscarriage of justice. The Commonwealth counters that the

defendant did not request such an instruction and agreed at

trial with the judge that the instruction was not needed, and

argues that no rational view of the evidence supported an

instruction on armed assault with intent to rob. We conclude

that the judge did not err in not providing an instruction on

felony-murder in the second degree and therefore no substantial

likelihood of a miscarriage of justice occurred.

As an initial matter, when discussing whether to provide an

instruction on felony-murder in the second degree during the

final charge conference, the judge stated that he did not think

the instruction applied at all, and the defendant agreed. The

judge next stated, "I couldn't even come up with what the

underlying felony would be that was distinct and separate from

and a "large knife." Rutherford had the defendant's pocketbook
in his possession, but the defendant was not present.
10

the actions . . . that resulted in the death of [the victim]."

The defendant did not disagree. "[W]here the felony later

advanced by a defendant as the predicate for an instruction on

felony-murder in the second degree is not itself the subject of

a separate indictment, no error occurs if the trial judge does

not charge the jury on it even though there may be sufficient

evidence supporting such a charge -- at least where, as here, no

party requested such an instruction or even brought the issue to

the judge's attention at trial." Commonwealth v. Stokes, 460

Mass. 311, 315 (2011).

Moreover, the judge properly instructed the jury on felony-

murder where "any rational view of the evidence pointed to the

charged crime of armed robbery, and not the lesser crime of

armed assault with intent to rob." Commonwealth v. Benitez, 464

Mass. 686, 693-694 (2013). Although, as the defendant argues,

there was evidence presented through Zapata's testimony that the

initial, and unaccomplished, plan was to bring the victim to his

shop in order to rob the safe there, "[w]hat matters is whether

the actual evidence in the case reasonably would support a jury

finding that the lesser predicate felony had been proved, and

not the greater." Id. at 694 n.12. See Commonwealth v. Holley,

478 Mass. 508, 528 (2017) (at time of defendant's trial, "an

instruction on felony-murder in the second degree [was]
11

necessary when there [was] a rational basis in the evidence to

warrant the instruction" [quotations and citation omitted]).

To prove the crime of armed robbery in a joint venture, the

Commonwealth must prove that the defendant or a coventurer, or

both, "(1) was or were armed with a dangerous weapon; (2) either

applied actual force or violence to the body of the person

identified in the indictment, or by words or gestures put him in

fear; (3) took the money or the property of another; and (4) did

so with the intent (or sharing the intent) to steal

it." Benitez, 464 Mass. at 690. To prove the crime of armed

assault with intent to rob in a joint venture, the Commonwealth

must prove that the defendant or a coventurer, or both, while

armed with a dangerous weapon, "assault[ed] a person with a

specific or actual intent to rob the person assaulted" (citation

omitted). Id. at 694 n.12. See G. L. c. 265, § 18 (b).

In the present case, "[n]o reasonable juror would view

[the] evidence as supporting a charge of armed assault with

intent to rob rather than armed robbery." Benitez, supra at

694. The medical examiner testified that the victim's principal

cause of death was blood loss and that he suffered multiple stab

wounds and other injuries. The injuries suffered by the victim,

along with Zapata's testimony that Rutherford planned to use

knives during the July 4, 2011, attempt, satisfy the first two

elements of armed robbery. Id. at 690. The evidence that
12

multiple items were removed from the victim's home and found by

police at Hernandez's home and in Rutherford's car satisfied the

third element of armed robbery. Id. The testimony of Hernandez

that Rutherford gave her the television stolen from the victim

in exchange for her promise to pay $500 and that she observed

Rutherford moving the stolen items to her home from his car,

coupled with Zapata's testimony that he, Rutherford, and the

defendant planned to split the robbery proceeds three ways,

satisfied the fourth element of armed robbery. Id.

If the jury did not believe that the defendant had

committed the predicate felony of armed robbery, "they would

have found the defendant not guilty; they could not have

rationally concluded that [she] was guilty only of armed assault

with intent to rob." Id. at 694-695. Therefore, the judge did

not err by not providing, sua sponte, an instruction on felony-

murder in the second degree, and there was no substantial

likelihood of a miscarriage of justice. See Commonwealth

v. Silva, 482 Mass. 275, 288 (2019). 7 Moreover, because there

7 In addition, the jury's questions regarding felony-murder
did not, as the defendant argues, further demonstrate that the
judge should have instructed on felony-murder in the second
degree. The judge provided a sufficient answer to the jury's
question. The jury asked (1) whether the second element of
felony-murder could be met without the defendant being proved to
actually cause the harm, and (2) for clarification on the second
element because the instructions did not clearly explain what
"knowingly participate" meant. The judge answered in writing:
(1) "The force and violence necessary is sufficient if it causes
13

was no substantial likelihood of a miscarriage of justice, the

defendant's claim of ineffective assistance of counsel on this

issue also is unsuccessful. See id. at 288 n.16.

2. Admission of defendant's historical CSLI records. The

defendant next contends that trial counsel was ineffective for

failing to challenge the admission of her historical CSLI 8 and

that its admission resulted in a substantial likelihood of a

miscarriage of justice. We agree with the Commonwealth that

even if the CSLI should not have been admitted, it was

cumulative of other evidence admitted at trial, and therefore,

the admission did not result in a substantial likelihood of a

miscarriage of justice. 9 The defendant accordingly also cannot

prevail on her claim of ineffective assistance of counsel.

victim to be separated from his property" and (2) "'Knowingly
participate' is used in its common meaning, as further refined
by the instruction on joint venture."
8 "[CSLI] 'refers to a cellular telephone service record or
records that contain information identifying the base station
towers and sectors that receive transmissions from a [cellular]
telephone.'" Commonwealth v. Fulgiam, 477 Mass. 20, 26 n.9,
cert. denied, 138 S. Ct. 330 (2017), quoting Commonwealth v.
Estabrook, 472 Mass. 852, 853 n.2 (2015).
9 Because we conclude that the admission of the CSLI did not
result in a substantial likelihood of a miscarriage of justice,
we need not determine whether, as the defendant argues, the
Commonwealth's application for the CSLI failed to meet both the
reasonable grounds standard of 18 U.S.C. § 2703(d) and the
probable cause standard set forth in Commonwealth v. Augustine,
467 Mass. 230, 255 (2014), S.C. 470 Mass. 837 and 472 Mass. 448
(2015) (Augustine I), which was decided seven months before the
defendant's case was tried. See 18 U.S.C. § 2703(d) (government
14

In the days following the murder of the victim, the

Commonwealth obtained the defendant's CSLI from June 10, 2011,

to July 14, 2011, pursuant to 18 U.S.C. § 2703(d). The

defendant's CSLI then was introduced at trial. To prevail on

her claim that trial counsel provided ineffective assistance by

failing to challenge the CSLI, the defendant must demonstrate

that a challenge would have been successful and that the failure

to bring the challenge resulted in a substantial likelihood of a

miscarriage of justice. Commonwealth v. Fulgiam, 477 Mass. 20,

29, cert. denied, 138 S. Ct. 330 (2017) (we focus on "whether

there was error and, if so, whether any such error was likely to

have influenced the jury's conclusion" [quotations and citation

omitted]). 10

is required to provide "specific and articulable facts showing
that there are reasonable grounds to believe that the [data]
sought, are relevant and material to an ongoing criminal
investigation"); Fulgiam, supra at 27 (in Augustine I, "we
concluded that government-compelled production of CSLI by
cellular telephone service providers was a search in the
constitutional sense, requiring a warrant under art. 14 of the
Massachusetts Declaration of Rights," but that Augustine I
standard applies only to past records requests if "the defendant
raised the warrant issue before or during the trial and the
defendant's conviction was not final at the time that Augustine
I was decided").

10The defendant specifically asserts that the testimony
concerning the CSLI from July 2, 4, 5, and 6, 2011, prejudiced
her, in part because the Commonwealth referred to the CSLI from
these dates in closing argument.
15

Although the CSLI from July 4, 2011, showed the defendant's

cell phone moving from Worcester to Holden and back to

Worcester, other evidence also showed that the three were

together and in the vicinity of the victim's home in Rutland on

that day: Zapata's testimony; Rutherford's mother, who lived in

and was in Rutland at the time, testified that Rutherford

borrowed her cell phone that day at some point between 1 P.M.

and 2 P.M. and did not return it until after 5 P.M; Rutherford's

mother's cell phone was used to place a call to the victim at

2:52 P.M.; and Rutherford's stepfather testified that he

observed Zapata lying down on the back seat of Rutherford's car

when the three were trying to get his mother's cell phone. And

to the extent that the CSLI from July 5, 2011, also showed the

defendant moving from Worcester to Holden and back to Worcester,

and showed her cell phone in the vicinity of the convenience

store near the time that calls were placed from the store's pay

telephone, the surveillance video and the call record of the

convenience store's pay telephone also showed this.

In addition, the jury had other evidence before them

regarding the defendant's involvement in the victim's murder,

including the relationship between the defendant and victim and

the knowledge she gained from the relationship; Zapata's

testimony about the plan; the defendant's telling two other

acquaintances that she planned to rob someone; and that the
16

bloody footprints matched the shoes that were worn by the

defendant.

3. Denial of motion to admit privileged psychiatric

records. The defendant next argues that the judge abused his

discretion in denying the defendant's motion to admit a two-page

psychiatric report on Zapata, resulting in prejudicial error.

We conclude that the judge was within his discretion in denying

the defendant's motion.

"All communications between a licensed psychologist and the

individuals with whom the psychologist engages in the practice

of psychology are confidential." G. L. c. 112, § 129A. See

G. L. c. 233, § 20B. To gain initial access to a privileged

document, counsel must first meet particular requirements.

See Commonwealth v. Dwyer, 448 Mass. 122, 147-149 (2006)

(Appendix) (describing protocols); Commonwealth v. Lampron, 441

Mass. 265, 268 (2004). Insofar as relevant here, a party must

first file a motion for the documents under Mass. R. Crim. P. 17

(a) (2), 378 Mass. 885 (1979), and a hearing is held to

determine whether the requested documents are presumptively

privileged. See Mass. G. Evid. § 1108 (2020). Before any final

pretrial conference, the defendant must then file a motion in

limine in order to be able to use the presumptively privileged

documents at trial. See Dwyer, supra at 150; Mass. G. Evid. §

1108(g). We review a judge's evidentiary ruling for an abuse of
17

discretion. See Commonwealth v. Andre, 484 Mass. 403, 414

(2020).

The defendant here filed a motion before trial under

the Dwyer protocol, requesting to be provided with Zapata's

records from June 1, 2011, to August 30, 2011. The motion was

granted, and the judge noted that the records presumptively were

privileged. The defendant did not file a pretrial motion in

limine to use the subject records at trial. See Dwyer, 448

Mass. at 150. During Zapata's trial testimony, the defendant

orally moved to admit Zapata's psychiatric records in evidence,

and the judge denied the motion. 11

The judge stated in his memorandum of decision that he

denied the motion because the records presumptively were

privileged; the defendant did not comply with Dwyer protocols;

the opinion contained in the record should have been presented

through the medical provider who created the document; and it

was improper to allow the medical provider's expert opinion to

be before the jury in written form without the Commonwealth

having an opportunity to cross-examine her. The judge further

explained that the defendant had received the benefit of

the Lampron-Dwyer protocol and the "functional equivalent of the

11After the jury began deliberating, the defendant filed a
motion for reconsideration of the judge's refusal to admit
Zapata's medical records, which the judge also denied.
18

record's admission as an exhibit" because the defendant had had

access to and use of the records; she was granted permission to

have her expert review the records to formulate his assessment

of Zapata, and Zapata himself had testified to "much of the

report's content"; and he would remain on the witness stand for

the remainder of his cross-examination by the defendant. In

addition, Zapata testified on direct and cross-examination

regarding the content of the records, and the defendant's expert

witness opined that based on the records he had reviewed, he

agreed with the author that the defendant had schizoaffective

disorder. The judge acted within his discretion to deny the

defendant's motion.

We also conclude that counsel's failure to move pretrial to

admit the report did not, as the defendant argues, result in

ineffective assistance of counsel. See Commonwealth v. Lee, 483

Mass. 531, 544 (2019). The judge did not deny the defendant's

motion solely on the basis of counsel's failure to follow Dwyer

protocols. Instead, the judge also stated in his decision that

the medical provider's opinion should have been presented

through the testimony of that medical provider. And as

explained supra, the defendant received the "functional

equivalent of the record's admission."

4. Testimony of Hernandez. The defendant next argues that

during the defendant's cross-examination of Hernandez, the judge
19

should have allowed in evidence statements that Rutherford made

to Hernandez about his relationship with the defendant to rebut

the Commonwealth's theory that the defendant and Rutherford were

close. 12 We agree with the Commonwealth that the judge correctly

prohibited the defendant from eliciting this testimony as

hearsay.

The defendant argued that she was not offering the

statements for their truth, but rather to show Rutherford's

state of mind. The Commonwealth argued that the statements were

hearsay not falling within any exception and that it was not

arguing that a joint venture was established because of the

close relationship between the defendant and Rutherford. The

judge did not err in excluding the statements because, to the

extent that the statements were relevant, Mass. G. Evid. § 401

(2020), they were not being offered for a nonhearsay purpose,

Mass. G. Evid. § 801(c)(2), (d)(2)(E), and they did not fall

within the state of mind exception to hearsay, Mass. G. Evid.

§ 803(3). Therefore, there was no prejudicial error.

5. Instruction on use of inferences. The defendant next

argues that the judge failed to provide the jury with a clear

12The statements the defendant sought to introduce included
that Hernandez observed the defendant and Rutherford arguing,
that Rutherford needed someone to help pay the rent and that
that is why he and the defendant lived together, and that
Rutherford did not want to be with the defendant but was doing
the right thing because she was pregnant with his child.
20

instruction on the use of inferences. In particular, she argues

that the judge erred by failing to instruct that a "conviction

should not be based upon the piling of inferences." We agree

with the Commonwealth that the judge gave a proper jury

instruction.

The judge instructed the jury, in part:

"The word 'infer,' or the expression, 'to draw an
inference,' means to find that a fact exists based on the
proof of another fact or set of facts. . . . An inference
may be drawn, however, only if it is reasonable and
logical, and not if it is speculative. . . . In deciding
whether to draw an inference, you must look at and consider
all of the facts in the case in the light of reason, common
sense, and your own life experience."

The judge also provided two scenarios from an example of

everyday life to illustrate the concept. 13 When instructing the

jury on joint venture, the judge stated, in part: "The

inferences you draw must be reasonable, and you may rely on your

experience and common sense in determining the defendant's

knowledge and intent." The judge further instructed that the

Commonwealth bore the burden of proving the defendant's guilt

beyond a reasonable doubt. The defendant did not object to the

lack of an instruction on the piling of inferences, and we

13The scenarios were: (1) if puddles are seen on the
ground in the morning, it can be inferred rain fell during the
night, even though the day is bright and clear, but (2) an
inference may be drawn only if it is reasonable and logical, and
not speculative, so if the puddles are only on your street and
not on other streets in your neighborhood, a broken water main
or sprinkler may explain the water.
21

therefore review for whether, if there was error, the error

created a substantial likelihood of a miscarriage of justice.

Although the instructions do not track with precision the

Criminal Model Jury Instructions for Use in the District Court

(2009) (model instructions), they provided an "adequate and

clear instruction[] on the applicable law," Commonwealth

v. Roberts, 378 Mass. 116, 130 (1979), S.C., 423 Mass. 17

(1996), and neither the model instructions nor the supplemental

instructions contain language about the piling of inferences.

See Instruction 3.100 of the Criminal Model Jury Instructions

for Use in the District Court. See also Commonwealth

v. Alleyne, 474 Mass. 771, 785 (2016) (as long as legal concepts

were properly explained in jury instruction, judge need not use

particular words); Instruction 2.240 of the Criminal Model Jury

Instructions for Use in the District Court. Moreover, the cases

cited as support by the defendant, see Commonwealth v. Gonzalez,

475 Mass. 396, 407 (2016); Commonwealth v. Mandile, 403 Mass.

93, 94 (1988), do not require that the suggested language be

included in a jury instruction. Gonzalez and Mandile both state

that a conviction may not rest upon "the piling of inference

upon inference or conjecture and speculation," but in both cases

the court was addressing the sufficiency of the evidence, not

the proper jury instruction. See Gonzalez, supra at

407; Mandile, supra at 94. In addition, the example that the
22

judge used to illustrate the concept of inferences, see note

13, supra, did not "permit the drawing of remote or speculative

inferences from assumed facts [or] the piling of inference upon

inference." See Commonwealth v. Gonzalez, 28 Mass. App. Ct.

906, 907 (1989). See also Silva, 482 Mass. at 290,

quoting Commonwealth v. Shea, 398 Mass. 264, 271 (1986) ("The

use of an illustration to explain an inference in connection

with the concept of circumstantial evidence is permissible").

Therefore, the judge did not err in instructing the jury on the

use of inferences and no substantial likelihood of a miscarriage

of justice occurred. See Commonwealth v. AdonSoto, 475 Mass.

497, 510-511 (2016).

6. Review under G. L. c. 278, § 33E. After a thorough

review of the record, we do not find reason to exercise our

authority under G. L. c. 278, § 33E, to reduce the defendant's

verdict or order a new trial. The defendant focuses her § 33E

argument on the judge's felony-murder instruction

and Commonwealth v. Brown, 477 Mass. 805, 823 (2017), cert.

denied, 139 S. Ct. 54 (2018), arguing that the judge's

instruction on felony-murder combined with the jury's questions

cast doubt on the justice of the verdict. She further argues

that the defendant's conviction "rests on two pillars rejected

in Brown: (1) vicarious criminal liability for acts committed

by joint venturers; and (2) imposition of a conclusive
23

presumption of malice from the intent to commit an inherently

dangerous predicate felony." See id. at 829 (Gants, C.J.,

concurring). We concluded supra that the judge did not err in

instructing the jury on felony-murder and that he provided

adequate answers to the jury's questions. In addition, as

recognized by the defendant, the holding in Brown was

prospective. Id. at 834 (Gants, C.J., concurring).

See Commonwealth v. Martin, 484 Mass. 634, 645 (2020).

Therefore, we decline to exercise our authority under § 33E to

reduce the defendant's verdict or order a new trial.

So ordered.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4638386. Public record. Not legal advice.