Supreme Judicial Court of Massachusetts, Middlesex
Heard: February 12, 2016.
found and returned in the Superior Court Department on August
6, 2009. A pretrial motion to suppress evidence was heard by
John T. Lu, J., and the cases were tried before
Kimberly S. Budd, J.
S. Strassfeld for the defendant.
Michael Charles, Assistant District Attorney (Christopher M.
Tarrant, Assistant District Attorney, with him) for the
Present: Gants, C.J., Spina, Botsford, Duffly, & Lenk,
defendant, Marquise Brown, was convicted of murder in the
first degree on theories of deliberate premeditation and
extreme atrocity or cruelty. He also was convicted of
illegally carrying a firearm, illegal possession of a loaded
firearm, and illegal possession of ammunition. On appeal the
defendant asserts error in (1) the denial of his motion for a
required finding of not guilty as to the theory of murder by
extreme atrocity or cruelty; (2) the denial of his motion to
suppress his statements to police; (3) the admission in
evidence of accusations by police during the interrogations
of the defendant; (4) the admission of a statement of the
codefendant under the joint venture exception to the
hearsay rule; (5) the admission of recorded jailhouse
telephone calls; (6) jury instructions on the theory of
extreme atrocity or cruelty; and (7) jury instructions that
precluded the jury from considering the defendant's youth
as to various issues. The defendant claims that the
cumulative effect of the various errors requires a new trial,
pursuant to G. L. c. 278, § 33E. We affirm the
convictions and decline to exercise our powers under §
33E to reduce the degree of guilt or to order a new trial.
jury could have found the following facts. Other details are
reserved for discussion of specific issues. On the evening of
June 19, 2009, the defendant, Yessling Gonzalez, and the
victim, all friends, attended a party in an apartment complex
in Marlborough. The party ended after a neighbor complained
about the noise. One of the partygoers, Melody Downer,
invited people, including the defendant and the victim, to
her apartment, which was nearby. While at Downer's
apartment, the defendant placed his money and marijuana on a
table. Downer took the money, and Gus Landrum took the
marijuana. The defendant, however, believed the victim had
stolen the items. Later that night, at the apartment of
another friend, the defendant accused the victim of stealing
his money and his marijuana. The two men, both age seventeen
at the time, fought. The altercation moved through the
hallways of two separate floors of the building, and
attracted many onlookers. The victim got the better of the
defendant. The victim then left, and the defendant's
friends had to restrain the defendant to keep him from
following the victim. The defendant was angry and threatened
to kill the victim, adding that he "didn't care if
he spent the rest of his life in jail."
about 1:30 P.M. the next day, June 20, the defendant and
Gonzalez returned to the Marlborough apartment complex with
the defendant's girl friend and some friends after going
to lunch. Thereafter, the defendant, Gonzalez, and the victim
traveled together in Gonzalez's silver Volvo station
wagon to Callahan State Park in Framingham. Surveillance
photographs showed the Volvo and three occupants at 1:41 P.M.
heading toward the park. Two men who had been mountain biking
in the park saw the Volvo enter the parking lot at the park.
They described for police the three occupants, and a
distinctive feature of the Volvo. Their descriptions
generally matched the features and clothing worn by the
defendant, Gonzalez, and the victim. The defendant, Gonzalez,
and the victim approached the entrance to a trail as the two
mountain bikers left the parking lot. The three men appeared
friendly toward each other.
approximately that time an employee at a nearby farm heard
two or three gunshots. At 2:01 P.M. the Volvo appeared on a
surveillance recording traveling away from the park with only
two occupants. Minutes later a hiker discovered the
victim's body on a trail. A bandana similar to one worn
by Gonzalez was found on the trail between the victim's
body and the parking lot. The victim sustained two gunshot
wounds. The first was fired from behind, penetrating the
right thigh, scrotum, and left thigh. The second and fatal
shot entered the front of the victim's chest and
perforated his heart and left lung. Gunshot residue on the
victim's shirt indicated the second shot was fired from
between three to five feet. The trajectory of the second
shot, together with abrasions on the victim's right knee,
suggested the victim was on his knees when the second shot
was fired. The murder weapon never was recovered.
recorded telephone calls from the jail where the defendant
was being held pending trial, the defendant admitted to his
grandmother that he was present during the killing, and that
he knew who did it. He told his grandmother during a
subsequent call that "the devil was in me . . . [and]
told me to get in [Gonzalez's] car." In another
telephone call the defendant told his girl friend that
Gonzalez was the shooter.
Extreme atrocity or cruelty.
defendant asserts error in the denial of his motion for a
required finding of not guilty as to the theory of murder by
extreme atrocity or cruelty. In particular, he maintains that
the Commonwealth failed to present evidence from which a jury
could conclude that any of the Cunneen factors had
been established. See Commonwealth v. Cunneen, 389
Mass. 216, 227 (1983). He focuses on the factor that the
killer took pleasure in, or was indifferent to, the
victim's suffering. Id. When deciding whether a
judge erred in denying a motion for a required finding of not
guilty, we view the evidence in the light most favorable to
the Commonwealth, and we ask if any rational trier of fact
could have found that the requisite elements of the crime had
been proved beyond a reasonable doubt. See Commonwealth
v. Latimore, 378 Mass. 671, 676-677 (1979) .
Notwithstanding the defendant's contention that the
medical examiner could not determine the order of the two
gunshots, and her testimony that a gunshot wound to the chest
could have produced death "instantaneous[ly], " the
medical examiner testified that her "best estimate"
was that the victim lived "minutes" after being
shot in the chest. This was supported by her testimony that
the gunshot wound to the chest caused approximately three
liters of blood to flow into the victim's chest cavity. A
jury could have inferred that death occurred minutes after
the victim was shot in the chest.
respect to the order of the gunshots, a jury could have found
that the first shot passed completely through the
victim's thighs and scrotum while he was standing. That
bullet traveled at a slightly downward angle, or nearly
parallel to the ground, which could explain why it was never
found despite efforts through the use of a metal detector to
locate it. The medical examiner testified that the bullet
that passed through the victim's scrotum likely would
have been painful. A jury also could have found that the
victim then fell to his knees, bruising them, and that the
defendant circled around the victim, looked him in the face,
and fired the second bullet at close range into his chest.
this evidence, and from the evidence that the defendant was
angry at the victim for beating him the day before, the
evidence of the defendant's threats to kill the victim
even if it meant spending the rest of his life in prison, and
the permissible inference that the defendant lured the victim
to the park as a symbol of their restored friendship, the
jury could have found that the defendant took pleasure in, or
was indifferent to, the victim's suffering. See
Commonwealth v. Anderson, 445 Mass. 195');">445 Mass. 195, 202 (2005)
(jury could have found defendant was indifferent to
victim's suffering based on inference that victim was
kneeling and terrified by knowledge of what was coming before
defendant shot him in face). The jury also could have found
that the victim was conscious of his suffering. Thus, a jury
could have found that the Commonwealth had established two of
the Cunneen factors (only one is needed) beyond a
reasonable doubt. See Cunneen, 389 Mass. at 227. See
also Commonwealth v. Linton, 456 Mass. 534, 546
(2010) (one or more Cunneen factor must be proved).
There was no error in the denial of the defendant's
motion for a required finding of not guilty.
Motion to suppress.
defendant asserts error in the denial of his motion to
suppress statements he made to police on June 21 and June 23,
2009. He argues that he was in custody both times, and the
Commonwealth failed to prove beyond a reasonable doubt that
he validly waived his Miranda rights and that his statements
were made voluntarily. When reviewing the denial of a motion
to suppress, "[w]e accept the judge's subsidiary
findings absent clear error but conduct an independent review
of his ultimate findings and conclusions of law."
Commonwealth v. Jiminez, 438 Mass. 213, 218 (2002).
The defendant's focus is on the involuntariness of the
Miranda waiver and the involuntariness of his statements. The
burden is on the Commonwealth to establish "beyond a
reasonable doubt, in the totality of the circumstances, that
a defendant's [Miranda] waiver was voluntary, knowing,
and intelligent, and that his statements were
voluntary." Commonwealth v. Auclair, 444 Mass.
348, 353 (2005). We summarize the facts found by the motion
in the investigation police learned that the defendant and
the victim had been involved in a fight on June 19, and that
the defendant had accused the victim of stealing his
marijuana and his cash. Police obtained a video surveillance
recording from the New England Primate Center, located close
to where the victim's body was found. The recording
showed two vehicles, one, a silver Volvo, traveling to and
from the vicinity of the shooting, before and after the time
that the sound of gunshots had been reported to police. On
June 21, two plainclothes detectives went to the apartment
where the defendant was living. The defendant answered the
door. He had a black eye, and explained that he received it
in a fight. The detectives asked if they could enter, and the
defendant obliged. There were two other adults, including
Gonzalez, and three children in the apartment. One of the
detectives spoke to the defendant, who appeared to understand
what the detective was saying. He did not appear to be under
the influence of alcohol or drugs, and he agreed to go to the
police station to speak to police. He left with two other
police officers who had arrived, and he did not appear
unsteady on his feet or demonstrate any difficulty walking.
the two detectives who originally arrived at the apartment
remained. He spoke to Gonzalez, asking for some
identification. Gonzalez said it was in his vehicle. When
they went to Gonzalez's vehicle, police noted that it was
a Volvo station wagon. He gave police some ...