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Commonwealth v. Rakes

Supreme Judicial Court of Massachusetts, Norfolk

September 29, 2017


          Heard: April 7, 2017.

         Indictments found and returned in the Superior Court Department on April 1, 2002.

         A motion to dismiss was heard by John C. Cratsley, J.; the cases were tried before Judith Fabricant, J., and a motion for a new trial, filed on November 6, 2013, was heard by her.

          Alan Jay Black for the defendant.

          Tracey A. Cusick, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Lenk, Gaziano, Budd, & Cypher, JJ.

          LENK, J.

         In the summer of 1987, Jay B. Schlosser and his girl friend, Heather Buchannan, were shot and killed in the Westwood home they shared with John D. Sweeney. In 2005, the defendant was convicted by a Superior Court jury as a joint venturer on two counts of murder in the first degree on the theories of felony murder, deliberate premeditation, and extreme atrocity or cruelty. His coventurer, James P. Ridge, had been tried separately at an earlier trial and had been convicted of the victims' murders.[1]

         The defendant appeals from his convictions and from the subsequent denial of his motion for a new trial. He maintains that the indictments should have been dismissed because the evidence supporting them was insufficient and because the Commonwealth's presentation impaired the integrity of the grand jury by failing to disclose exculpatory evidence, introducing prior bad acts, and commenting on the defendant's invocation of his right to remain silent. As to the trial, the defendant challenges the sufficiency of the evidence and claims structural error and ineffective assistance of counsel in connection with a purported court room closure during jury selection. He also asserts error in the admission of certain hearsay evidence concerning the joint venture, in the prosecutor's closing, and in the jury instructions on reasonable doubt. He requests relief under G. L. c. 278, § 33E. We affirm the convictions and the order denying the motion for a new trial, and, after careful review of the record, decline to set aside the verdicts or reduce the degree of guilt under G. L. c. 278, § 33E.

         1. Background.

         We recite the facts that the jury could reasonably have found, reserving certain details for later discussion. The victims, Schlosser and Buchannan, were boy friend and girl friend. Sweeney, the intended target of the armed robbery underlying this case, had recently moved in with the victims. The victims and Sweeney, along with Ridge, the defendant's coventurer, and most of those involved in the events surrounding the killings, were all part of the same social circle, and all involved in the cocaine trade. The defendant was not a member of that social circle, although Ridge knew him, and Ridge's roommate, Kevin Trundley, knew who the defendant was.

         Most of the evidence presented at trial related to Ridge. Sometime around 1986, Sweeney had convinced Ridge (a long-time friend) and members of the Ridge family to invest $10, 000 to $15, 000 in a business to retrieve treasure from a sunken ship in the Caribbean. The business turned out to be a scam, and Ridge and his family members lost all the money that they had invested (as did Sweeney and members of his family). Sweeney pledged to get Ridge his money back.

         The promised reimbursement never materialized, other than through Sweeney's efforts to pay Ridge back by giving him cocaine free of charge. Ridge was angry that Sweeney appeared to live in relative wealth while failing to pay Ridge the money he felt he was owed. Trundley, a friend of both Sweeney and Ridge, testified that Sweeney flaunted his wealth in Ridge's presence. Ridge was "very upset about the way [Sweeney] was living" in light of the slow repayment, and vowed to "get his money" back.

         In the months leading up to the killings, Ridge became increasingly fixated on Sweeney. One witness testified that, at some point, Ridge was at Sweeney's mother's house when Sweeney was not present; he was shooting holes in Sweeney's shirts so that Sweeney would not have nice clothes to wear.

         Ridge began frequently asking various acquaintances where Sweeney lived. At this time, Ridge was familiar with and had access to firearms, and he regularly traveled with a duffel bag containing "WD-40" metal lubricant, masks, and duct tape. On multiple occasions, Ridge was seen loading firearms in a peculiar manner: wearing gloves and spraying the bullets with WD-40. Ridge contended that this method would ensure that he left no traceable fingerprints. Roughly two months prior to the killings, Ridge threatened Sweeney directly, saying he would kill him if he did not receive his money.

         Apparently in response to this threat, Sweeney left the home he had previously shared with Trundley in the Jamaica Plain section of Boston. He moved twice and ended up living in Westwood with Buchannan and Schlosser, his partners in the cocaine trade. Ridge, for his part, took Sweeney's place as Trundley's roommate.

         At some point Ridge learned, through Trundley, that Sweeney had moved in with Schlosser and Buchannan. Approximately one week before the killings, Ridge, Trundley, and their respective girl friends drove past Sweeney's house. Both Trundley and his girl friend testified that when passing the home, Ridge instructed the driver to slow down. As the vehicle slowed to a "crawl, " Ridge slumped down in his seat and said he did not want anyone to recognize him. He remarked that the house would be an easy hit because of its location. Later that week, Ridge told Trundley that he planned to rob Sweeney's house with a "brother and sister" but refused to identify them.[2] He explained further that he planned the robbery for some time between 8 and 10 P.M. on a rainy evening, when he expected the neighbors would have their windows closed and would be watching television.

         On June 25, 1987, Ridge told Trundley that the robbery would take place that night. During the conversation, Ridge was carrying the duffel bag that he regularly kept with him. Trundley agreed with Ridge to provide a key to Sweeney's house, but testified at trial that he had no such key and never followed through on his promise. In addition, as Trundley feared violence if Sweeney was in the house when the robbery occurred, he persuaded Sweeney -- without explaining why -- to leave his house and spend the evening with Trundley in Jamaica Plain. The two men were joined by three women, and together the group drank alcohol and consumed cocaine. At around 11 P.M., Sweeney and one of the women returned briefly to Sweeney's house with plans to pick up more cocaine.[3]

         Upon arriving, Sweeney saw the bodies of Schlosser and Buchannan, bound in duct tape, on the couch. The whole house looked as if it had been ransacked. An antique rifle belonging to Schlosser lay in the kitchen, out of its normal storage place, and there was a hole in the wall that, Sweeney testified, had not been there earlier in the day. Sweeney left and immediately returned to Jamaica Plain to meet Trundley. He did not tell the woman with him what he had seen. Instead, on the drive back, he telephoned Trundley and told him that the three women would need to leave as soon as Sweeney arrived. They did so. Sweeney then frisked Trundley, suspicious he may have been involved in the killing. Finding no weapons, and apparently thus satisfied, he then told him what he had seen. Sweeney next telephoned a Federal Bureau of Investigation (FBI) agent he knew. Early in the morning of June 26, Sweeney, Trundley, and the FBI agent met and drove together to the Westwood police station where they reported the victims' deaths. Police tested Sweeney's hands for blood and found none. Officers were dispatched to the house soon thereafter and found the victims' bodies as described.

         The police investigation revealed that the victims died as a result of gunshot wounds. Buchannan was shot twice, including once through the head, while Schlosser was shot once, with the single bullet passing through his wrist and then entering his skull. As mentioned, both victims were bound with duct tape around the ankles, knees, and hands; their eyes, and Buchannan's mouth, were also covered. Schlosser's mouth was not taped, but there appeared to be duct tape residue around it, and there was duct tape crumpled on the nearby coffee table. Two spent .38 caliber cartridges and three shell casings were found at the scene. There were no eyewitnesses to the killing, the murder weapon was never found, and there was no physical evidence linking either Ridge or the defendant to the killing. Police searched, but were not able to find any usable fingerprints. There is no indication that police tested for deoxyribonucleic acid (DNA); that method of identification was in its infancy at the time.

         Later that same day, Trundley and Sweeney drove to Cape Cod. Sweeney called Ridge and asked him to join them, and Ridge was driven down by Trundley's girl friend. On the drive, she saw Ridge with a significant amount of cocaine despite the fact that she knew him to be "broke" and unable to afford it at the time. In addition, Ridge mentioned to her that he had to see Trundley because "things didn't go right." The evening that Ridge arrived, Trundley, who had expected only a robbery, confronted him and asked, "Why did you kill those people?" Ridge replied, "because she recognized me, " and warned Trundley to "keep [his] mouth shut." The next day, Sweeney and Trundley went to retrieve Sweeney's vehicle, which he had allowed Ridge to use, and found Ridge cleaning it out. Sweeney noticed a loan coupon book in the vehicle, which he was certain he had left at home on June 25. He abruptly took his vehicle back, and immediately drove away alone, leaving Ridge and Trundley behind.

         Trundley testified that, after learning of Ridge's involvement with the murders, he "stayed away from him as much as [he] could, " but continued to speak to him on occasion. A few weeks after their initial conversation, Ridge gave Trundley a more detailed account of the robbery and the ensuing killings. Ridge explained that when the robbers entered the home, Schlosser grabbed an old rifle, but that "they beat him up, took the rifle away, brought him into the living room, [and] duct taped him."[4] According to Ridge, Schlosser offered to give the robbers whatever they wanted and further offered to withdraw more money for them from the bank the following day. He pleaded that "no one need[ed] to get hurt." As the robbers were about to leave, "the person that [Ridge] went in there with said he wasn't about to do any more time."[5] Ridge responded, "I got you into this, I'll get you out of this." He shot Buchannan twice and subsequently shot Schlosser once. Ridge reported that, although he stole some money and some cocaine from the home, he did not get as much as he had hoped. He left some cocaine in the home so that police would suspect that the murder was related to drug sales, and be less interested in finding the perpetrators.

         Ridge again reminded Trundley to "keep [his] mouth shut." He threatened to kill him should he tell police, and pointed out that, as Trundley had aided in the preparation for the robbery, he could face charges as a joint venturer. Ridge continued to warn Trundley to stay silent over the course of the following year. Trundley appears to have heeded these warnings for some time, but was cooperating with police by the summer of 1988.

         Two out-of-court statements by Ridge and one by the defendant himself linked the defendant to the killings. The first was made by Ridge to Trundley sometime in late fall of 1987, several months after the murders. At the time, Trundley felt threatened by certain persons from whom he was attempting to collect a debt, and called Ridge for help. Ridge told him he would "call up Rakesy and . . . come out there." Ridge clarified that he was referring to "Jimmy Rakes" and that Rakes was "the guy I did Westwood with."

         The other inculpatory statements were made much later. Ridge and the defendant were both indicted on April 1, 2002, and arraigned in Superior Court the following day. They were thereafter held in the Dedham house of correction. Ridge told Mark Condon, an inmate who was being transferred between units at the same institution, to "tell Rakes my end is tight." The defendant also became friendly with Condon while incarcerated. When Condon mentioned that he knew the reason for the defendant's incarceration and had read about it in the newspaper, the defendant replied, "It was the other guy [who] shot them" while pointing toward Ridge's unit, and added that "nobody planned on getting shot."

         2. Discussion.

         a. Motion to dismiss.

         Prior to trial, the defendant moved to dismiss the indictment on several grounds, and he renews most of his contentions on appeal. Specifically, he argues that the evidence before the grand jury was insufficient to demonstrate probable cause, and that the integrity of the grand jury was impaired both by the Commonwealth's failure to present certain exculpatory evidence and by inappropriate references to his criminal history and his invocation of the right to remain silent. We discern no error warranting dismissal of the indictments or reversal of the convictions.

         i. Insufficient evidence.

          The defendant first contends that the indictment was not supported by sufficient evidence. An appellate court reviews the sufficiency of the evidence supporting an indictment in the light most favorable to the Commonwealth. See, e.g., Commonwealth v. Levesque, 436 Mass. 443, 444 (2002). To sustain an indictment, the grand jury must be presented with "sufficient evidence to establish the identity of the accused . . . and probable cause to arrest him" for the crimes charged (citation omitted). Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982). Probable cause requires only evidence "sufficient to warrant a reasonably prudent [person] in believing that the [accused] had committed" the offense (citation omitted). Id. at 163. "This standard . . . has been employed primarily to strike down indictments in cases where a grand jury has heard . . . no evidence whatever that would support an inference of the defendant's" guilt (citation omitted). Commonwealth v. Truong Vo Tam, 49 Mass.App.Ct. 31, 37 (2000).

         In this case, the grand jury heard sufficient evidence to warrant a finding of probable cause. Three witnesses linked the defendant to the robbery and killing. Sergeant Richard Nagle of the State police testified that he spoke to Michaelina Karos, the defendant's girl friend at the time of the killings, multiple times when investigating this case. According to a conversation between Nagle and Karos in 1992, the defendant had admitted his involvement to her soon after the victims' deaths. The defendant told Karos that he "just killed two people somewhere out in Marlborough or some fucking place, " "a guy and a girl, " and that the victims had been tied up with duct tape. He explained that he killed them to avoid being identified and facing prison time for armed robbery. Trundley testified to a conversation in which Ridge said that along with the defendant and a woman, he robbed the victims of money and cocaine, bound them with duct tape, and killed them. Finally, Mary Bergin, a friend of the defendant, testified to a conversation with the defendant's sister Patricia. Patricia said that she, the defendant, and Ridge "taped [the victims] up . . . and they shot them."

          While the evidence before the grand jury consisted purely of hearsay, "[w]e have consistently and without notable exception held that 'an indictment may be based solely on hearsay.'" Commonwealth v. Stevenson, 474 Mass. 372, 376 (2016), quoting Commonwealth v. O'Dell, 392 Mass. 445, 450-451 (1984). Only in "extraordinary circumstances" does the exclusive reliance on hearsay so impair the grand jury proceedings as to warrant dismissal. Stevenson, supra at 377. We discern no such extraordinary circumstances in this case.

         ii. Impairment of grand jury integrity through failure to present exculpatory evidence.

         The defendant also argues for dismissal of the indictments on the ground that the integrity of the grand jury was impaired by the Commonwealth's failure to present certain exculpatory evidence. See O'Dell, 392 Mass. at 449. Generally, "the mere withholding of exculpatory evidence [from a grand jury] is not a proper ground for the dismissal of an indictment." Commonwealth v. Pina, 406 Mass. 540, 549, cert. denied, 498 U.S. 832 (1990). There are two exceptions to this rule: if evidence was withheld in a manner that distorts the meaning of the evidence admitted, or if the exculpatory evidence was so powerful it would have severely undermined the credibility of an important witness or likely have led the grand jury not to indict. See Commonwealth v. Wilcox, 437 Mass. 33, 37 (2002); Commonwealth v. McGahee, 393 Mass. 743, 747 (1985); O'Dell, supra at 449.

         The defendant contends that two pieces of evidence could have undermined the credibility of the witnesses before the grand jury. Neither, however, was of sufficient significance to require that it be introduced. First, the defendant argues that the grand jury should have been told that Bergin admitted to being under the influence of cocaine during her conversation with Patricia Rakes. Nagle's police report indicates that Bergin told him, "I remember it was the 80's because I was doing [c]oke at the time . . . . [Patricia] came over . . . [Patricia] was nervous/paranoid looking out the window. But at the time we were all paranoid looking out the window[, ] because we all did coke." This statement does not indicate that Bergin was intoxicated at the time of her conversation with Patricia. Rather, it is best read as an acknowledgment by the witness that she had used cocaine regularly in the years surrounding the victims' deaths and, as a result, feared the possibility of arrest. The admission of chronic drug use fifteen years prior to her statement would not "greatly undermine" Bergin's credibility or the Commonwealth's case. Cf. Commonwealth v. LaVelle, 414 Mass. 146, 150-151 (1993) (even prior criminal convictions of grand jury witness would not "greatly undermine" credibility).

         Second, the defendant claims that the grand jury should have been told of Federal indictments against FBI Agent John Connolly, whom Sergeant Nagle referenced. He argues that the integrity of the proceedings were undermined by the failure to disclose indictments for Connolly's offenses, including obstruction of justice, racketeering, and conspiracy.[6] This evidence also need not have been placed before the grand jury. Connolly was mentioned only briefly and in passing, and his credibility was not relevant to the grand jury's determination. Sergeant Nagle testified that he first heard the defendant's name when "an FBI agent named Connolly . . . called . . . and he said, 'The person you want to look at is James Rakes.'" The subsequent investigation of the defendant, which led to the inculpatory evidence placed before the grand jury, did not involve Connolly at all.

         iii. Impairment of grand jury integrity through evidence of prior bad acts and reference to invocation of right to silence.

          Before the grand jury, Nagle made certain references to both the defendant's unrelated bad acts and his invocation of the right to silence. Specifically, Nagle related three statements that Karos ascribed to the defendant: that "he kills people for money, " that "his sister . . . introduced him to Whitey Bulger when he was seventeen, " and that she should always "remember the five P's when you kill someone -- proper planning prevents poor performance." Soon thereafter, however, the prosecutor instructed the grand jurors that "you've heard some testimony . . . [that] at least some of the individuals hav[e] been involved in other crimes, and you should not use that in your consideration of whether or not they committed these particular crimes." Nagle also commented on the defendant's invocation of his right to silence. He told the grand jurors that he had asked the defendant about his relationship with Ridge, and the defendant replied, "This is where I stop answering questions." He added that, when confronted with details of the murders during the interview, the defendant's "eyes began to fill up with tears" and he stared at the floor.

         To warrant reversal, the defendant must show not only that the statements were inappropriate, but also that "viewed in the context of all the evidence presented to the grand jury, [the statements] 'probably made a difference, ' in [the] decision to indict" (emphasis added). Commonwealth v. Freeman, 407 Mass. 279, 283 (1990), quoting Commonwealth v. Mayfield, 398 Mass. 615, 621-622 (1986). On this record, the defendant cannot make that showing. The appropriately admitted evidence was more than sufficient to demonstrate probable cause. Moreover, the prosecutor's clear and relatively contemporaneous instruction presumably mitigated the prejudice from the introduction of prior bad acts evidence. See, e.g., Commonwealth v. Jenks, 426 Mass. 582, 587 (1998). Testimony regarding the defendant's ...

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