September 10, 2015.
Indictments found and returned in the Superior Court
Department on April 18, 2008.
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.
M. Kempthorne for Markeese Mitchell.
Teo, Assistant District Attorney (Mark A. Hallal, Assistant
District Attorney, with her) for the Commonwealth.
Green, Rubin, & Hanlon, JJ.
N.E.3d 114] Hanlon, J.
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,
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.
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.
jury could have found the following facts. 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.
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
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."
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.
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, 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. 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."
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.
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.
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.
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.
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
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.
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
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.
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.
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
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 ...