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Commonwealth v. Brown

Supreme Judicial Court of Massachusetts, Middlesex

June 17, 2016


          Heard: February 12, 2016.

         Indictments 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.

          Gail S. Strassfeld for the defendant.

          Jamie Michael Charles, Assistant District Attorney (Christopher M. Tarrant, Assistant District Attorney, with him) for the Commonwealth.

          Present: Gants, C.J., Spina, Botsford, Duffly, & Lenk, JJ.

          SPINA, J.

         The 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[1] 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.

         1. Background.

         The 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."

         At 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.

         At 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.

         In 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.

         2. Extreme atrocity or cruelty.

         The 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.

         With 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.

         From 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.

         3. Motion to suppress.

         The 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 judge.

         Early 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.

         One of 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 ...

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