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Commonwealth v. Silva

Supreme Judicial Court of Massachusetts, Plymouth

June 11, 2015

Robert Silva

Argued: February 6, 2015.

Indictments found and returned in the Superior Court Department on March 23, 2007.

Page 611

A pretrial motion to suppress evidence was heard by Paul E. Troy, J., and the cases were tried before Richard J. Chin, J.

Chauncey B. Wood for the defendant.

Mary E. Lee, Assistant District Attorney, for the Commonwealth.

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


[31 N.E.3d 1093] Botsford, J.

The defendant, Robert Silva, stands convicted of murder in the first degree on theories of extreme atrocity or cruelty and felony-murder, and also of armed robbery.[1] He appeals the convictions, arguing that (1) his motion to suppress evidence of his sneakers and evidence derived from blood found on his sneakers was improperly denied; (2) the trial judge erred in instructing the jury on the theory of joint venture liability where the Commonwealth's exclusive argument was that the defendant was guilty as a principal; (3) the judge also erred in denying the defendant's request for an instruction on involuntary manslaughter; and (4) the prosecutor improperly shifted the burden of proof in her closing argument. Finally, the defendant [31 N.E.3d 1094] argues that he is entitled to relief under G. L. c. 278, § 33E. We affirm the defendant's convictions.


1. Facts.

We summarize the facts that the jury could have found at trial.[2] During the afternoon of June 9, 2004, the defendant and Eric Pimental, both eighteen years old, were walking together on a path in the woods in Wareham. They encountered Thomas Loftus, the victim, who was intoxicated,[3] and they agreed that they would " roll" him.[4] After Pimental knocked the victim down to the ground, both Pimental and the defendant began to kick the victim, and the defendant jumped on the victim's chest. The defendant later stated to David Belmore, a fellow inmate of the Plymouth County correctional facility (PCCF), " You should have seen [the victim's] eyes bug out when I jumped on his chest," and that he and Pimental knew the victim

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was dead when his eyes ceased to move.[5] The two men moved the victim's body off the path, and the defendant and Pimental took the victim's backpack, his money, and other items the victim was carrying on his person. The defendant ended up carrying Pimental's camouflage-colored backpack with the victim's black backpack inside of it; Pimental ended up with the victim's money. Before leaving the woods, the defendant and Pimental encountered Kathy Browne, who was walking on the same path in the woods with her young son. They spoke briefly together, and Browne noticed blood on Pimental's legs. The defendant and Pimental then departed from the woods, separated, and the defendant went downtown, where he drank whiskey.

Some hours later, around 6:30 p.m., Thomas Joyce, the chief of police of Wareham, who was off duty, observed the defendant trying to open locked vehicles on a street in Onset, a section of Wareham. Based on his observations and conversation with the defendant, Joyce decided to place the defendant in protective custody because of the level of the defendant's intoxication.[6] Joyce opened the camouflage-colored backpack the defendant was carrying to check for possible weapons, and noted that there was another backpack inside.[7] The defendant and the backpacks [31 N.E.3d 1095] were transported to the Wareham police station, and the police took custody of the backpacks. Because the police determined that the defendant had at least one outstanding warrant, he was not released at the end of the protective custody period, but taken

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to the Wareham Division of the District Court Department (Wareham District Court) the following morning, June 10, 2004. Following his court appearance, the defendant remained in custody pursuant to the outstanding warrant, and was transported to the PCCF.

During that same morning, June 10, 2004, the victim's body was found off the path in the woods where the defendant and Pimental had encountered Browne the previous afternoon. In the early morning hours of the following day, June 11, based on information supplied by his then girl friend, Pimental was arrested and charged with the victim's murder. Later that day, the defendant's sneakers were seized from the PCCF pursuant to a search warrant. DNA testing performed on a sample taken from a bloodstain on one of the defendant's sneakers revealed that the sample matched the victim's blood; the likelihood that a random individual's DNA would match the sample was one in ninety-five quintillion. The bloodstain on the defendant's other sneaker was not sufficient for DNA testing.

The cause of the victim's death was blunt force trauma to the chest. His sternum was broken, and his heart lacerated by the sternum bone. His ribs on both sides of his chest were broken, and he would have been alive when that occurred. His left lung was torn. The injuries to his chest, heart, and lung were consistent with being stomped. ...

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