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Commonwealth v. Silva

Supreme Judicial Court of Massachusetts, Bristol

May 15, 2019


          Heard: January 11, 2019.

         Indictments found and returned in the Superior Court Department on November 21, 2013.

         The cases were tried before Robert J. Kane, J.

          Jeffrey L. Baler for the defendant.

          Tara L. Johnston, Assistant District Attorney, for the Commonwealth.

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

          GAZIANO, J.

         On October 15, 2013, sixty-nine year old Joyce Howland was found dead in her home. After a seven-day trial, a Superior Court jury convicted the defendant of armed robbery and murder in the first degree in her death, on theories of extreme atrocity or cruelty and felony-murder. At trial, the Commonwealth argued that the defendant had robbed the victim of her jewelry, slit her throat, and sold the jewelry to obtain money for drugs. The jury heard testimony from the defendant's coworker, over the defendant's objection, that the defendant previously had said that if he were to break into a house that the two had seen, he would find it necessary to kill its occupants. During deliberation, the jury requested a magnifying glass, without stating the purpose for which they intended to use it.

         On appeal, the defendant argues that the trial judge erred in providing the jury with a magnifying glass during deliberation, as a violation of the defendant's rights to due process and confrontation. The defendant argues also that the jury instruction on circumstantial evidence and inferences unconstitutionally "diminished the Commonwealth's burden of proof," and violated his due process rights. In addition, the defendant contends that his statements to his coworker should not have been admitted, and that the introduction of those statements requires a new trial. He also asks that we exercise our authority under G. L. c. 278, § 33E, to reduce the verdict of murder in the first degree or to order a new trial. For the reasons that follow, we affirm the convictions and decline to grant relief under G. L. c. 278, § 33E.

         1. Facts.

         We recite facts that the jury could have found, viewed in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). We reserve some facts for later discussion.

         The victim lived alone, and she suffered from lower back problems. At the time of her death in October 2013, she weighed under one hundred pounds. At some point in 2013, the victim contracted with a home maintenance and repair contractor to insulate her attic. In October 2013, that contractor hired a separate building and supply company to complete the job. The defendant worked for the company that the victim hired to insulate her attic. He had been hired one to two weeks before the job was completed, after an acquaintance who worked for the company, Paulo Dias, introduced the defendant to the insulation department manager.

         a. Events of Friday, October 11, 2013.

         On the morning of Friday, October 11, 2013, the defendant, Dias, and their supervisor arrived at the victim's house to begin the installation. The supervisor left soon thereafter, leaving Dias[1]and the defendant alone with the victim, who was sitting on the couch. Dias and the defendant brought bags of insulation into the attic through a small opening in a closet located in the victim's bedroom.

         Over the course of several hours, as the two men were working, Dias noticed several pieces of jewelry on a bureau in the victim's bedroom, including a herringbone chain necklace, another chain necklace, and some rings. The defendant and Dias discussed the jewelry and noted that it could be worth some money. They talked about possibly taking the jewelry, but decided against doing so, because they would be paid that day. The defendant explained nonetheless that if he were to attempt to take the jewelry, he would leave his tools behind and come back later; would knock on the door and be let in because he had forgotten his tools; and would hit the jewelry owner over the head and kill her.[2]

         In addition to noticing the jewelry, Dias noted that the victim had prescription pills in her bathroom. Dias and the defendant determined that the pills were painkillers, and each consumed some. Neither Dias nor the defendant used any other drugs that day; Dias testified that the pills helped to ease his backache.

         The two completed the installation at approximately noon. Dias did not have a driver's license, so the defendant drove him back to the building company where they worked, in a maroon company truck with white lettering.[3] The defendant received his paycheck and cashed it that afternoon.

         b. Events of Monday and Tuesday, October 14 and 15, 2013.

         On Monday, October 14, 2013, a holiday, Dias and the defendant worked on an insulation job for a different customer. When the supervisor drove the defendant to the worksite that morning, the defendant asked him for twenty dollars even though the supervisor had paid the defendant on Friday.

         Over the course of that morning, when Dias and the defendant were standing outside the house where they were working, they saw the next door neighbors outside with a young child. Dias testified, over defense counsel's objection, that "the next-door neighbors were out there with their kid, little baby, about two, three years old that I could see, and it came up that if -- he was like, if I broke into this house, I'd have to kill everybody, and I was -- even the baby. And I was like, why would you have to kill the baby for? . . . Why would you have to kill the baby if he couldn't even identify you, if you did something like that, you know?"[4]

         Dias and the defendant completed the insulation job around noon or 1 P.M., and the supervisor brought them back to the office in the company truck. The supervisor asked the defendant if he would pick up insulation at a warehouse that afternoon. The defendant agreed that he would get the insulation and put it away, lock the truck and the shed, and telephone the supervisor when he was finished. The defendant took the maroon truck, and he dropped Dias off at home on his way to the warehouse. The supervisor received a telephone call from the defendant at 3:22 P.M., during which the defendant told the supervisor that he had locked up around 2 P.M. Dias watched his children at home that afternoon until 4 or 5 P.M.

         Sometime before 2 P.M. that day, the victim spoke with a longtime friend on the telephone; the victim said that she planned to join the friend at a trivia event that evening. The victim spoke with someone else by telephone at approximately 2 P.M. When the victim did not appear for the trivia event that evening, her friend telephoned but got no answer. The next morning, Tuesday, the friend drove to the victim's house. She found the front door unlocked, went inside, and discovered the victim lying on the floor of her bedroom. She ran outside and telephoned 911.

         Paramedics arrived at approximately 11:15 A.M. One of the first responders saw a half-eaten meal on a coffee table. There was also a cigarette that looked like it had burned out. The victim was lying on her left side with a pool of blood surrounding her head. A paramedic determined that the victim had died prior to the first responders' arrival. When the victim was rolled over, a large incision was visible across the front of her neck. The victim's blood was found on a candle box in her bedroom and on multiple plates in the kitchen sink. A black knife in the sink tested positive for the presence of blood, but no confirmatory test determined whether the blood was human.[5]

         An autopsy revealed that the cut across the victim's neck was seven and one-half inches long, on average one inch deep, and comprised at least two distinct cuts. The victim's veins and arteries were severed below the jaw. She also had numerous other cuts, scrapes, and bruises on her arms, face, neck, and torso. Blunt force trauma to one of her vertebrae was consistent with her head having been yanked backward, and superficial scrapes on her chin were consistent with defensive wounds. A forensic pathologist testified that from the beginning of the infliction of the major wound to her neck, the victim would have been conscious for ten seconds or more.

         Surveillance video footage introduced at trial showed a maroon truck with white lettering, identified as the maroon company truck, traveling east on Route 6 on October 14, 2013, at approximately 2:16 P.M. The truck was carrying white bundles in the back that looked like insulation. What seemed to be the same truck appeared on surveillance video footage traveling in the opposite direction nineteen minutes later, at 2:35 P.M. In a recorded interview on Tuesday evening, October 15, 2013, the defendant told police that he had gone to the victim's house on Monday afternoon to retrieve a tape measure that he had left behind. He said that he was at the victim's house for a maximum of five minutes.[6] Trial testimony established that if someone were driving the maroon truck seen on the surveillance footage at 2:16 P.M. to the victim's house, and if the driver only stayed at the victim's house for a maximum of five minutes before returning, the truck should have been visible on the surveillance video no more than nine minutes after 2:16 P.M.

         Surveillance video footage from a nearby restaurant showed an individual wearing light-colored pants appear to toss something into an alleyway at approximately 2:45 P.M. on October 14, 2013.[7] A few days after this video footage was recorded, after hearing conversations among his staff about some type of incident in the area, the restaurant manager retrieved and watched the footage. He then went into the alley, found a prescription bottle label bearing the victim's name, and gave it to police.

         Sometime on the afternoon of October 14, 2013, an individual known as "Mojo" contacted Jonathan Chicoine, and asked Chicoine to bring the defendant to a pawn shop because the defendant had something he "wanted to get rid of." Because Chicoine did not have government identification documents, and because such documents are necessary in order to sell something at a pawn shop, Chicoine enlisted the help of a female friend, who did have appropriate identification documents. Chicoine, this friend, and another female friend picked up the defendant at a restaurant using Mojo's automobile, a white four-door sedan. When the ...

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