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Commonwealth v. Mitchell

Appeals Court of Massachusetts, Suffolk

January 28, 2016

Markeese Mitchell (and two companion cases [1])

         Argued September 10, 2015.

Page 14

          Indictments found and returned in the Superior Court Department on April 18, 2008.

         Pretrial motions to suppress evidence and to sever were heard by Charles J. Hely, J.; the cases were tried before Judith Fabricant, J., and a motion for a postconviction evidentiary hearing, filed on December 3, 2012, was heard by her.

          Richard L. Goldman for Terrance Pabon.

          Richard B. Klibaner for Pedro Ortiz.

          Jeanne M. Kempthorne for Markeese Mitchell.

          Amanda Teo, Assistant District Attorney (Mark A. Hallal, Assistant District Attorney, with her) for the Commonwealth.

         Present: Green, Rubin, & Hanlon, JJ.


          [45 N.E.3d 114] Hanlon, J.

          After a jury trial, the defendants, Markeese Mitchell, Terrance Pabon, and Pedro Ortiz were convicted of murder in the second degree in connection with the stabbing death of Terrance Jacobs. Paul Goode also was indicted, tried with the defendants, and convicted of murder in the second degree. Goode's direct appeal originally was consolidated with the others; however, by motion and pursuant to an order of this court, Goode's appeal was severed. Goode's statement to the police was admitted at trial and is the predicate for one of the defendants' common claims of error, under Bruton v. United States, 391 U.S. 123, 135-137, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Pabon and Mitchell claim error in the denial of their respective motions to suppress their statements to the police. They also contend that, because they were between the ages of fourteen and seventeen when the crime occurred, they ought to have been afforded individualized sentencing, in light of Miller v. Alabama,

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132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 1 N.E.3d 270 (2013). In addition, some or all of the defendants claim error in the admission of Pabon's statement to the police; certain evidentiary rulings at trial; certain remarks made by the prosecutor in closing argument; the denial of their request for a jury instruction on withdrawal from a joint venture; and the denial of their postconviction motion for permission to inquire of a juror who, they alleged, had reasons to be biased against them.

         We have examined each of their contentions and conclude there was no error. We therefore affirm the judgments and the order of the judge denying the postconviction motion.


          The jury could have found the following facts.[2] On May 22, 2007, sixteen year old Terrance Jacobs was beaten and stabbed to death in the Mattapan section of Boston. Four months earlier, Jacobs had been charged with slashing the face of one Jaleek Leary outside a local skating rink called " Chez Vous." Leary was fourteen years old and the defendants were among his friends and relatives.

         On the afternoon of May 22, 2007, Pabon, Mitchell, and Ortiz were in the area of 10 Wilcock Street in Mattapan, drinking and smoking. A number of other individuals were present, including the codefendant Goode and one Dedrick Cole, who testified at the trial. At 7:00 p.m., Richard [45 N.E.3d 115] Allen and Orlando Waters arrived and approached the group. Waters indicated that he was part of a local gang (" M.O.B." ). Ortiz responded that someone from M.O.B. had slashed the face of his cousin, Jaleek Leary. Ortiz sought " a fair one" -- i.e., a one-on-one fistfight without weapons -- in response to that attack. Waters said that he was amenable; he returned to his vehicle and drove away. Allen remained on the scene. Ortiz then informed Cole that either Pabon or Emmanuel DeJesus (" Pudge" ) would fight the " kid" (i.e., Jacobs) who had cut Leary.

         Approximately thirty minutes later, at about 7:30 p.m., and while it was still daylight, Waters returned to Wilcock Street, accompanied by two males. Cole recognized one of the two males as a " guy I knew as Justice." After exchanging brief words with Allen, Waters left the scene, only to return with a larger group; among them was the victim, a boy whom Cole had known as " Terra."

Page 16

          When the two groups faced off, Ortiz asked Waters if the fight was " on." Ortiz pointed to Pudge as the fighter for the Wilcock Street group. Pudge was just under six feet tall and muscular, weighing about 210 pounds. The victim voiced some qualms about fighting Pudge. The victim was slightly built, no more than 150 pounds, and at least four inches shorter than his opponent. While the victim continued to express his misgivings about having to fight, Waters forcibly pushed him toward Pudge, sparking a brawl among all present. Ortiz, Pabon, and Mitchell struck the victim in the face with their fists. Waters and two associates initially joined the scrum but then backed off, but not before one man took out a handgun and fired three or four shots toward the crowd, prompting those assembled to flee.

         The victim managed to gather himself and then ran on foot into oncoming traffic on Blue Hill Avenue. Pabon chased after him and stabbed him in the back more than once, using a knife. Mitchell, Ortiz, and Goode followed in pursuit. They all turned onto Havelock Street,[3] where the chase was recorded by two surveillance cameras mounted on an establishment known as Kay's Oasis, at the corner of Havelock Street and Blue Hill Avenue. All of the defendants were identified in the surveillance footage, which showed them running (or, in Mitchell's case, riding a bicycle) to and from the area where the victim was found lying face down, bleeding profusely.[4] There was testimony that Mitchell stabbed the victim and then walked away " wiping the blood on a pole." Another witness testified that Mitchell, Ortiz, and Pabon all stabbed the victim. Still another witness testified that " [t]he person that was on the bike was ramming their bike into the person on the ground," while another person was " making a jabbing motion with [his] right hand ... [a]nd also kicking" the victim, in the " abdomen area ..., chest, back, stomach area."

         At about 8:00 p.m., a Boston police detective came to the scene in an unmarked vehicle; he had been alerted about the street brawl by a concerned citizen. Within a minute or two, Boston emergency medical technicians arrived, attended to the victim, and transported him to a local hospital, where he was pronounced dead. The murder weapons were not recovered.

Page 17

          [45 N.E.3d 116] On June 19, 2007, two Boston police detectives, in plain clothes, interviewed Pabon at his Avondale Street home, in the presence of his mother. Pabon's interview was recorded and admitted at trial, over the codefendants' objections. Eight days later, on June 27, the same detectives interviewed Mitchell, with his father and grandfather present, at the home of his grandfather in Brockton. Mitchell made a statement to police but declined to have a recording made.

         Pabon and Mitchell filed separate motions to suppress their statements to the police. A motion judge, who was not the trial judge, denied both motions with careful findings of fact and rulings. The motion judge also heard the defendants' motions to sever each of their respective cases for trial; the requests were based upon what the defendants perceived to be a Bruton issue stemming from the Commonwealth's expected use, at the joint trial, of a statement that Goode had made to the police. The judge denied the severance requests and ordered that Goode's police statement be redacted to exclude any reference to any codefendant by name. The Commonwealth did so.


          1. Motions to suppress.

          Reviewing the denial of a motion to suppress, we must accept the motion judge's findings of fact, which shall not be disturbed absent clear error. Commonwealth v. Tremblay, 460 Mass. 199, 205, 950 N.E.2d 421 (2011). We review de novo the judge's application of the law to the facts found. Commonwealth v. Mercado, 422 Mass. 367, 369, 663 N.E.2d 243 (1996). Questions as to the credibility of a witness are matters for the judge to decide. Commonwealth v. Tremblay, supra.

         a. Mitchell's statement.

         The motion judge found the following facts. On June 27, 2007, Mitchell's grandfather, Timothy Johnson, returned a telephone call from a Boston police detective and agreed that the police would interview Mitchell at Johnson's home in Brockton. That same day, at about 9:05 p.m., Detectives Paul McLaughlin and Michael Devane arrived at Johnson's home in plain clothes and met with Johnson, Mitchell, and Mitchell's father, Humberto Hernandez. Mitchell was sixteen years old. The detectives told the three that, if they felt uncomfortable at all, they could end the conversation at any time and the detectives would leave. Johnson asked the detectives to sit at a kitchen table for the interview. When Mitchell joined them, the detectives told him that they were from the Boston Police Homicide Unit and assigned to the investigation of the victim's murder. Mitchell, Johnson, and Hernandez agreed to go forward with the interview.

Page 18

          Mitchell denied any knowledge of the incident and stated that he did not recall seeing anyone get stabbed. McLaughlin then asked to speak with Johnson and Hernandez separately, in an adjacent room, and he showed the two men photographs of Mitchell on a bicycle and on foot at the crime scene. McLaughlin indicated that Mitchell was not telling the truth about the incident. In the interim, nothing of substance was said between Devane and Mitchell at the kitchen table. The detectives then asked if they could make a sound recording of the remainder of the interview. Johnson, Hernandez, and Mitchell all declined.

         The detectives informed Mitchell that they knew he was at least a witness to the stabbing, and they showed him a surveillance photograph depicting a young man in a red shirt on a bicycle; Mitchell admitted that he was the boy on the bicycle. Presented with a second photograph, Mitchell admitted that he was the boy in the image depicted running next to another male on a [45 N.E.3d 117] bicycle. Those photographs were taken just minutes before the victim was stabbed while he was lying close by on the sidewalk. Mitchell also confirmed that he was the boy in a red shirt seen running in two other photos. Mitchell said he could not identify anyone else in those photographs.

         When the detectives showed Mitchell other surveillance photographs, he identified a " black/Hispanic" male in a green tank top as " Terrance," and said he did not know Terrance's last name. In another photo, Mitchell identified a similar male in a striped shirt as Terrance. The detectives determined that this male was Terrance Pabon.

         In response to McLaughlin's observation that the surveillance video showed Mitchell running directly to the spot where the stabbing took place, Mitchell stated, " I just remember kids running." He added, " I kept running" and " I didn't see anything." Mitchell stated that he ran through a nearby yard to reach Wilcock Street. He denied taking a knife from one of the attackers and wiping the blade on an object. The detectives told Mitchell and his father and grandfather that Mitchell was not being honest about the incident and that they might need to talk with him again. The interview ended and the detectives left the home at 10:25 p.m.; Mitchell was not arrested until March, 2008.

         In a supplemental brief, Mitchell argues that the motion judge's finding that his statement was voluntary was erroneous, given the " totality of the circumstances, including his age, mental, psychological, and educational deficits, and other factors." He also

Page 19

argues that the motion judge did not take into account his age in determining that he was not in custody during the meeting with police and that, as a result, Miranda warnings should have ...

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