Heard: October 11, 2016.
found and returned in the Superior Court Department on
January 7, 2011, and February 11, 2011.
motions to suppress were heard by Renee P. Dupuis, J., and a
motion for joinder was also heard by her; and the cases were
tried before D. Lloyd Macdonald, J.
Cathryn A. Neaves for Charles Mendez.
Jennifer H. O'Brien for Tacuma Massie.
Cho, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Hines, Gaziano, Lowy, & Budd, JJ.
evening of November 18, 2010, Edward Platts was shot and
killed while sitting in his motor vehicle at a housing
complex in Fall River. The defendants, Charles Mendez and
Tacuma Massie, were each indicted on charges of (1) murder in
the first degree; (2) carrying a firearm without a
license; (3) carrying a loaded firearm without a license; and
(4) armed robbery. They additionally were charged with
assault and battery by means of a dangerous weapon and armed
robbery on separate indictments in connection with a separate
incident involving a different individual. The motion judge
denied the defendants' motions to suppress evidence
seized in connection with their warrantless stop. At the
conclusion of a joint jury trial in September, 2013, the
defendants were convicted of all charges.
defendant filed a timely notice of appeal. Both assert the
following errors: the denial of his motion to suppress; the
joinder at trial of the indictments for two separate
incidents; and portions of the prosecutor's closing
argument. Massie further argues that there was insufficient
evidence to convict him of the armed robbery and
felony-murder. Each defendant separately asserts additional
errors pursuant to Commonwealth v. Moffett, 383
Mass. 201, 208 (1981).
affirm the defendants' convictions and decline to
exercise our extraordinary power under G. L. c. 278, §
summarize the facts in the light most favorable to the
Commonwealth, reserving certain details for discussion of
evening of November 18, 2010, just after 6 £.M., the
defendants ambushed and robbed Ryan Moitoso in a parking lot.
Moitoso thought he was meeting Mendez's girl friend to
sell her marijuana. The girl friend drove the defendants near
the area where she was to meet Moitoso and let them out of
her vehicle. As Moitoso spoke with the girl friend, the
defendants approached him from behind. One of them hit him in
the head with a hard metal object and told him to empty his
pockets. Moitoso turned over some cash and marijuana, and
heard a clicking noise that sounded like a gun being cocked,
before being allowed to return to his vehicle. The defendants
got back into the girl friend's vehicle, and she drove
away. When she asked what had happened, one of the defendants
replied, "That's life, " and tossed a bag of
marijuana into the front passenger area.
the girl friend dropped the defendants off at a nearby
housing complex where Massie had arranged to meet Platts
(victim) on the pretext of wanting to make a marijuana
purchase. The defendants intended to rob the victim of the
approximately $4, 000 that, Massie had learned, he was
carrying that day. Prior to the meeting, a witness was parked
in the housing complex and, while sitting in his vehicle,
observed two men fitting the description of the defendants
walk by him. The victim, who had a puppy with him, parked his
vehicle behind the witness's vehicle. The witness then
observed the same two men walk toward the back of his
vehicle. Within seconds, the witness heard a gunshot and a
vehicle engine accelerate, and then he felt the victim's
vehicle hit the back of his vehicle. The witness telephoned
911 and told the dispatcher that a man had been shot. A
resident of the complex looked out of her window at the sound
of the gun shot to observe an individual matching
Mendez's description get out of the passenger side of the
victim's vehicle and quickly leave the scene carrying
something clutched to his chest.
meantime, Mendez's girl friend received several telephone
calls from Massie between 6:41 and 6:49 P.M. She returned to the
complex and picked up both Massie and Mendez, pulling away
quickly from the curb where they entered her vehicle. A State
trooper who was in the housing complex investigating the 911
call observed the vehicle's hasty departure, and followed
it. See part 2.a, infra.
the defendants were arrested, both were carrying handguns;
Massie's was loaded. Massie had more than $4, 000 in
cash, Mendez's clothes were stained with the victim's
blood, and police found the victim's puppy in the
vehicle. Police found Mendez's hat in the victim's
victim was shot at close range behind his right ear as he sat
in his vehicle. At trial, Mendez claimed that the victim had
drawn a gun on him and, after a struggle, he shot the victim
in self-defense. He also claimed that the handgun that he had
had in his possession when he was apprehended belonged to the
Motion to suppress.
defendants claim error in the denial of their motions to
suppress evidence seized as a result of a warrantless stop
that took place soon after the shooting. The
constitutionality of the stop depends on the police officer
having reasonable suspicion of criminal activity at the time
it occurred. Commonwealth v. DePeiza, 449 Mass. 367,
371 (2007). Reasonable suspicion "must be grounded in
'specific, articulable facts and reasonable inferences
[drawn] therefrom' rather than on a
'hunch.'" Id., quoting Commonwealth
v. Scott, 440 Mass. 642, 646 (2004).
reviewing a ruling on a motion to suppress, "we accept
the [motion] judge's subsidiary findings of fact absent
clear error and leave to [that] judge the responsibility of
determining the weight and credibility to be given oral
testimony presented at the motion hearing."
Commonwealth v. Wilson, 441 Mass. 390, 393 (2004).
However, "[w]e review independently the application of
constitutional principles to the facts found."
summarize the facts found by the motion judge. After the
witness's vehicle was hit by the victim's, the
witness telephoned 911 to report that a person had been shot
in the head in his vehicle and was dead, and that the
individuals involved had fled. A State police trooper with the
violent fugitive apprehension section, who was dressed in
plain clothes and traveling nearby in an unmarked police
cruiser, heard the police transmission of this report and
headed toward the housing development. Approximately two
blocks from the development he observed a person moving
quickly toward a parked vehicle. Without stopping, the
trooper relayed the registration plate number and learned
that the vehicle was registered to a woman with no criminal
history. Moments later, and less than ten minutes after the
initial 911 transmission, he arrived at the complex and began
to patrol, looking for suspicious activity.
trooper drove through the housing complex, which he found to
be unusually quiet, he observed an individual, later
identified as Mendez, make a "beeline" to a white
Honda Civic automobile that was stopped at the curb with its
engine running. Mendez entered at the rear passenger side of
the vehicle, which started to pull away quickly, before
Mendez had fully entered or closed the door. Because of what
appeared to the trooper to be a very unusual absence of any
other people and lack of any other activity on the streets or
sidewalks in the housing complex, and the vehicle's quick
departure from the area, the trooper followed the vehicle
while it traveled in a "serpentine route, "
meandering through the city streets. Meanwhile, police who had
responded to the scene at the housing complex confirmed to
the trooper that a man had been shot in the head and killed.
following the vehicle, the trooper reported its registration
plate number and learned that an individual associated with
the address of the vehicle's owner had "lots of
violence" on his record, including a firearms charge,
and pending drug charges. The trooper, who could see that
there were two persons seated in the back of the vehicle,
radioed for backup. Approximately four miles away from the
housing complex, the driver of the vehicle stopped in front
of a three-family home but kept the motor running. As the
trooper was without backup or a place to park, he stopped his
vehicle in the middle of the street and waited. Approximately
fifteen to thirty seconds later, the two defendants got out
of the back seat of the vehicle at the same time and turned
to face him. They were speaking to one another and both had
their hands in their jacket pockets. In fear of his safety,
the trooper got out of his vehicle, showed his badge and
said, "Police, don't move." The two men fled in
opposite directions. Mendez ran toward the trooper but soon
returned to the white vehicle, getting in and telling ...