Supreme Judicial Court of Massachusetts, Plymouth
Heard: April 8, 2016
found and returned in the Superior Court Department on
December 30, 2009.
pretrial motion to suppress evidence was heard by Thomas F.
McGuire, Jr., J., and the cases were tried before Raymond P.
Veary, Jr., J.
Russell C. Sobelman for the defendant.
M. McKenna, Assistant District Attorney, for the
Present: Gants, C.J., Spina, Botsford, Duffly, & Hines,
April, 2013, a jury convicted the defendant, Vernon T.
Carter, of murder in the first degree of Scott Monteiro on a
theory of felony-murder, based on the predicate felony of
armed robbery. The defendant was also convicted of armed
robbery, assault and battery of Sheldon Santos, possession of
a firearm, and possession of ammunition. On appeal, the
defendant asserts error in (1) admission of identifications
obtained through procedures alleged to be suggestive; (2)
testimony from a last-minute Commonwealth witness; (3) the
prosecutor's closing argument; (4) omission of jury
instructions regarding involuntary manslaughter, "humane
practice, " and intoxication; (5) judicial bias; and (6)
firearms-related convictions without evidence that he was not
licensed. The defendant also argues that he is
entitled to relief under G. L. c. 278, § 33E. We vacate,
as duplicative, the defendant's armed robbery conviction,
because it was the predicate felony for his felony-murder
conviction, the only theory on which the jury found him
guilty of murder in the first degree. See
Commonwealth v. Alcequiecz, 465
Mass. 557, 558 (2013). We affirm the defendant's
remaining convictions, and we discern no other basis to
exercise our authority pursuant to G. L. c. 278, § 33E.
summarize the evidence as the jury could have found it,
reserving certain facts for later discussion. At
approximately 10 P.M. on Friday, September 4, 2009, a group
of twenty to thirty people, in their late teens or early
twenties and generally from the Wareham area, gathered at a
residence in Wareham for a "house party." People
were socializing and drinking, "[j]ust teenage and
adolescent kids having fun." Monteiro, who had turned
twenty-one years of age approximately one month before the
party, arrived with three of his friends. Santos was there
wearing a gold chain.
the young women at the party had asked the host if she could
invite her friend "Justin." Between 11:30 P.M. and
midnight, Justin arrived with a group of ten to fifteen
people. They introduced themselves to one or more partygoers
as being from the "United Front" in New Bedford.
The party became more "tense" after the group's
arrival, and someone in the group started to complain,
"This party is whacked. . . . There's no
bitches." A short time later, the majority of the New
Bedford group left the house. Within a few minutes, two to
five people reentered and approached Santos. Santos had been
sitting on a sofa with his girl friend, and Monteiro was
sitting on a nearby chair. Santos stood up when approached,
and a few people from the New Bedford group surrounded the
sofa area so as to prevent anyone from leaving. The defendant
pulled a gun out of his pants, pointed it at Santos's
head, and said, "Run your chain." He reached toward
Santos, and Santos dropped to the floor. Monteiro then stood
up, held his hands out with palms facing up, and calmly said,
"Chill, we are all just chilling." The defendant
fired three shots, and a single bullet hit Monteiro above his
right eye. At some point during this altercation, Santos
suffered a face injury that required sutures; he also lost
his gold chain.
Monteiro's friends attended to him as the remaining
partygoers dispersed. The police and emergency medical
services personnel arrived a few minutes after the shooting.
Monteiro was lying on the floor, breathing but unresponsive.
He was transported by ambulance to a nearby hospital.
Monteiro died from a gunshot wound to the head.
police recovered a spent shell casing from the ambulance and,
during Monteiro's autopsy, recovered three fragments of a
shell casing from Monteiro's head. The shell casing from
the ambulance was from a .22 caliber firearm, and the
fragments were consistent with being from the same firearm.
police spoke to witnesses the night of the party, many of
whom gathered outside of the house after the incident. At
least one of the partygoers knew the defendant by name and
provided that information to police. Using that information,
Wareham police compiled two photographic arrays containing
the defendant's photograph. The following morning, the
police showed the first array containing eight photographs to
the witness who knew the defendant. The witness did not
identify the defendant's photograph in this array. Less
than one hour later, the police showed the witness the second
array containing six photographs. The witness identified the
defendant in the second array, explaining that he recognized
the defendant in the first array but did not identify him
because he was "nervous."
one and one-half hours after the identification, Wareham
police notified police in New Bedford that the defendant was
a suspect in a homicide investigation and requested that they
question him. Within one hour of the dispatch, New Bedford
police officers observed the defendant walking and stopped
their cruiser to speak to him. The defendant stopped and
agreed to accompany them to the police station for
questioning. At the police station, the officers recorded the
interview. The defendant told them that he had been at the
party but stayed outside the house. After questioning the
defendant for approximately one hour, the police released
following morning, the defendant went to the house of a woman
he had known since he was a child and asked if he could stay
with her because the police were looking for him in
connection with an incident at a party in Wareham. She said,
"no, " because her family was there. As she hugged
him goodbye, she felt something "heavy" and
"hard" in the defendant's waist.
police arrested the defendant later that day pursuant to a
warrant. He was wearing a black hat displaying the word
"Invincible." The State police interrogated the
defendant on September 6 and 7, 2009. The defendant told police
that he was at the party, he did not have a gun, but he knew
that at least four people in his group were carrying
firearms. He said that Santos and his "squad" had
guns and threatened someone in the New Bedford group. He said
he saw the shooter "cock" the firearm and
"pistol whip" Santos, and that he was about five or
six feet from the shooter when the gun was fired. The
defendant also told police that one of the people in his
group, "Justin, " hid a gun after the party, and he
directed police to the apartment where the gun could be
found. The police seized a .38 caliber firearm from the
apartment, which did not fire the shell casing obtained from
the ambulance and was not consistent with the firearm used as
the murder weapon.
forty-eight hours of the shooting, four witnesses identified
the defendant as the shooter in photographic arrays.,  They and
other witnesses described the shooter as between five feet,
five inches and five feet, nine inches tall, skinny,
"light skinned, " and wearing a black hat. One of
the witnesses testified that the shooter was wearing a hat
displaying the word "Invincible." The police showed
the witnesses an additional photographic array containing
other people mentioned by the defendant as being at the
party. Except for one witness who identified a photograph of
Justin as being at the party, no other potential suspects
defendant challenges a number of issues at trial, framing
them as errors by the judge, the prosecutor, defense counsel,
or some combination thereof. We consider each claim to
determine "whether there was an error in the course of
the trial (by defense counsel, the prosecutor, or the judge)
and, if there was, whether that error was likely to have
influenced the jury's conclusion."
Commonwealth v. Wright, 411 Mass.
678, 682 (1992), S.C., 469 Mass. 447 (2014).
defendant filed a motion to suppress the four eyewitness
identifications of him as the shooter, claiming that the
photographic arrays were unnecessarily suggestive and tainted
the remaining identifications because the witnesses discussed
the incident in person and through social media. Two
witnesses failed to identify the defendant in an initial
photographic array containing eight photographs, but
subsequently identified the defendant when shown the second
array containing six photographs. The defendant was the only
person depicted in both arrays. The defendant also argued
that the following procedures caused the arrays to be unduly
suggestive: the photographs were not presented sequentially,
the arrays were not blindly administered, and all arrays
should have contained at least eight photographs.
evidentiary hearing, the defendant focused on the two
identifications that were obtained through repetitive arrays.
The judge concluded that the repeat arrays were not
unnecessarily suggestive. First, the photographs in each
array were similar to the defendant's photographs. Next,
the second array contained a more recent photograph of the
defendant with shorter hair, which was more similar to his
appearance at the party, and both witnesses told police that
the shooter had shorter hair than the individuals depicted in
the photographs in the first array. Moreover, the judge found
that the witness who knew the defendant before the party was
not swayed by the presence of his photograph in repeat
arrays, crediting the witness's testimony that he did not
identify the defendant in the first array out of fear.
appeal, the defendant does not claim error in the denial of
the motion to suppress, but argues that the prejudicial
effect of the photographic array procedure; the conflicting
witness testimony; the consumption of alcohol and marijuana
by eyewitnesses; and a "rumor mill" created
through witness discussion of the incident prior to the
identifications, social media, and media coverage caused a
substantial likelihood of a miscarriage of justice. The
defendant's argument lacks merit.
defendant "has a due process right to identification
procedures meeting a certain basic standard of
fairness." Commonwealth v.
Silva-Santiago, 453 Mass. 782, 794 (2009), quoting
Commonwealth v. Dougan, 377 Mass.
303, 316 (1979). We discourage the use of repeated arrays
containing a suspect's photograph, see
Commonwealth v. Scott, 408 Mass.
811, 826 (1990), and the use of repeated arrays could make
identification procedures unnecessarily suggestive if the
police do not have good cause for the use of such procedure.
In this case, the judge implicitly found good cause because
the second array was given to both eyewitnesses after each
commented that the perpetrator's hair was shorter than
was depicted in the photographs used in the first array.
Moreover, we recognize that police did not follow procedures
that we have previously recommended: "double-blind
procedure" and "sequential method." See
Silva-Santiago, supra at 797-800. However,
the absence of the recommended procedures goes only to the
weight of the identifications, not admissibility.
Id. at 797-799.
conclusion that the identifications were not
"unnecessarily suggestive" does not end the
inquiry. Even if otherwise admissible, a judge may suppress
identification evidence if "its probative value is
substantially outweighed by the danger of unfair
prejudice." Commonwealth v.
Johnson, 473 Mass. 594, 599 (2016), quoting
Commonwealth v. Crayton, 470 Mass.
228, 249 n.27 (2014). Mass. G. Evid. § 403 (2016). In
this analysis, the "probative value of the
identification depends on the strength of its source
independent of the suggestive circumstances of the
identification." Johnson, supra at
601. Relevant factors include "the witness's
opportunity to observe the offender at the time of the crime,
the amount of time between the crime and the identification,
whether the witness's earlier description of the
perpetrator matches the defendant, . . . whether the witness
earlier identified another person as the perpetrator or
failed to identify the defendant as the perpetrator, "
and "the witness's prior familiarity with the person
record reflects, however, that the defendant would not have
been able to meet his burden to establish that the prejudice
resulting from the admission of the identifications
outweighed their probative value. The four eyewitness
identifications were made within forty-eight hours of the
shooting, the witnesses observed the shooter from nearby
locations -- one witness being "a foot away" from
the gunman at the time -- and their ability to observe and
report the incident was not impaired by alcohol or drugs.
defendant claims that he was unfairly surprised by the
testimony of a witness not listed on the pretrial witness
list and that trial counsel was ineffective for failing to
object to this testimony. The Commonwealth has an affirmative
duty to timely disclose proposed witnesses. See Mass. R.
Crim. P. 14 (a) (1) (A) (iv), (v), as amended, 444 Mass. 1501
(2005). A judge has "significant discretion in deciding
whether late-discovered or late-disclosed witnesses should be
excluded from testifying" as a remedy for the late
disclosure. Commonwealth v. Nolin,
448 Mass. 207, 225 (2007), quoting Commonwealth
v. Trapp, 423 Mass. 356, 363-364, cert,
denied, 519 U.S. 1045 (1996). The relevant inquiry is whether
the defendant has sufficient time to investigate the proposed
testimony. Commonwealth v. Lopez,
433 Mass. 406, 413 (2001). In that regard, "it is the
consequences of the delay that matter, not the likely impact
of the nondisclosed evidence." See Commonwealth
v. Baldwin, 385 Mass. 165, 175 (1982),
quoting Commonwealth v. Wilson,
381 Mass. 90, 114 (1980).
the prosecutor told the judge on the fifth day of trial that
he had mistakenly omitted a witness from the list. He asked
that the witness, a Wareham police officer, be permitted to
testify and asserted that defense counsel had agreed to such
the prior day. The judge granted the request. The officer,
who was the first at the scene of the shooting, testified
that he saw a shell casing from a small caliber firearm on
the floor near Monteiro's body when he approached to
provide care. Police did not find that shell casing or any
other ballistics evidence at the house.
defendant has not shown any prejudice from the testimony or
demonstrated that he could have benefited if defense counsel
had objected. The record reflects that defense counsel agreed
to the prosecutor's request, suggesting that he had an
adequate opportunity to prepare for the testimony. Moreover,
he thoroughly cross-examined the witness on matters relating
to the central issue in the trial -- the credibility of the
eyewitness identifications. The officer testified after the
five eyewitnesses, all of whom had been shown photographic
arrays. Defense counsel's cross-examination focused on
differences between recommended procedures for arrays and
those used during ...