Heard: April 5, 2019.
found and returned in the Superior Court Department on May 2
and June 27, 2013.
pretrial motion to suppress evidence was heard by Renee P.
Dupuis, J; the cases were tried before Gary A. Nickerson, J.,
and a motion for a new trial, filed on December 29, 2017, was
considered by him.
J. Baronoff for the defendant.
G. Sylvia, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Lenk, Lowy, Budd, & Cypher, JJ.
a jury trial, the defendant, Jeremy Amaral, was convicted of
murder in the first degree on the theories of deliberate
premeditation, extreme atrocity or cruelty, and felony-murder
(with armed robbery as the predicate offense) in connection
with the death of Tiffany Durfee. In this consolidated appeal
from his convictions and from the denial of his motion for a
new trial, the defendant challenges the denial of his motion
to suppress his statements to police, instructions given to
the jury, and the improper exclusion of certain hearsay
evidence. The defendant further argues that the judge
improperly denied him an evidentiary hearing on his motion
for a new trial. Alternatively, the defendant requests that
we exercise our authority under G. L. c. 278, § 33E.
affirm the defendant's convictions and the order denying
his motion for a new trial. Further, after a review of the
entire record, we decline to reduce the verdict of murder in
the first degree to a lesser degree of guilt or to set aside
the defendant's convictions under G. L. c. 278, §
summarize the facts as the jury could have found them,
reserving certain details for discussion of specific issues.
afternoon of March 13, 2013, the victim was found dead in her
living room with her throat cut. Her two young children were
found unharmed in their bedroom. A flat screen television was
missing from her home.
on telephone records, investigators learned that several
calls were made between the victim's and the
defendant's cellular telephones (cell phones) beginning
at approximately 11 £.M. on March 12 and continuing
into the early morning of March 13. On March 14, after
learning that police were looking for him, the defendant
appeared at the police station. With him was Michael Garcia,
a close childhood friend. The two were interviewed separately
and gave similar accounts of being at the victim's home
in the early morning hours of March 13. Both told police that
they took one of the victim's televisions (with her
consent) to exchange it for cash and "crack"
cocaine. The two claimed that after smoking the cocaine with
the victim, they then invited another individual, whom we
shall call David, to the apartment to purchase the
victim's second television. The defendant and Garcia told
police that they left David alone with the victim and
implicated David in the victim's death.
confirming that David had an alibi, investigators spoke again
to the defendant, and learned that the defendant sold the
victim's television to an individual named Jason
McCarthy. McCarthy testified that when the defendant arrived
at his home with the television, the defendant's
sweatshirt was stained red. When McCarthy asked the defendant
what happened, he replied, "I just murdered somebody
.... No. I was painting." When police confiscated the
television, it was smeared with red-brown stains that tested
positive for the presence of blood.
defendant and Garcia subsequently were arrested and charged
with misleading the police. When Garcia learned that the
television was stained with blood, he admitted to police that
he had lied about having been with the defendant in the
victim's apartment. Rather, Garcia said that the
defendant had telephoned Garcia from the victim's home at
approximately 2 or 3 A.M. to ask for a ride so that the
defendant could bring the television to McCarthy.
of the investigation, the defendant and Garcia's hands
were swabbed; the defendant's hands tested positive for
the presence of blood. Investigators recovered a bloody
T-shirt found in a trash can in McCarthy's yard, and a
bloody sweatshirt and bloodstained shoes from a second
location based on a lead from Garcia. Deoxyribonucleic acid
(DNA) testing of the blood stains on the clothing and shoes
did not exclude the victim as the source. Tests on samples
containing DNA from more than one person also did not exclude
the defendant and the victim, although they did exclude
Garcia, David, and McCarthy, among others. Further, the soles
of the shoes were consistent with footprint impressions found
in blood in the victim's apartment.
defendant, who testified at trial, claimed that although he
was present, it was Garcia who killed the victim during an
argument over cocaine. The defendant further testified that
the story he told police in his first interview was made up
to protect Garcia.
Statements made to investigators.
defendant claims that the motion judge erred by declining to
suppress the videotaped statements he made to investigators
because he was not provided with a recitation of the Miranda
warnings prior to questioning and because his statements were
made involuntarily. "'When reviewing the denial of a
motion to suppress, we accept the [motion] judge's
findings of fact . . . absent clear error,' but we
independently determine 'the correctness of the
judge's application of constitutional principles to the
facts as found.'" Commonwealth v.
Molina, 467 Mass. 65, 72 (2014), quoting
Commonwealth v. Tremblay, 460
Mass. 199, 205 (2011) . In light of the deference owed the
judge's findings, and on our own review of the record, we
affirm the order denying the defendant's motion to
summarize the detailed findings of fact made by the motion
judge. The defendant and Garcia voluntarily appeared at the
police station with Garcia at approximately 4 P..M. on March
14, 2013, to be interviewed. The two were escorted to
separate interview rooms, but they could converse freely
prior to the start of the interviews. The defendant also
placed telephone calls before the interview began, and he
telephoned his mother during a break in the questioning to
make dinner plans. The defendant told investigators at the
start of the interview that he had to "get
straight" prior to speaking with police, which was
interpreted to mean that he had ingested drugs before
arriving at the station. However, he did not smell of
alcohol, slur his speech, or otherwise appear to be under the
influence of an intoxicating substance. He was
"coherent, lucid and talkative." He "clearly
manifested an understanding of the conversation" and
answered questions appropriately. At some points he expressed
wariness of supplying some information for fear of being
labeled a "rat"; at others, he attempted to
leverage his willingness to cooperate for
"consideration" in connection with a pending
tone of the interview was "cordial, polite,
nonaggressive, and heavily influenced and controlled by the
defendant." The defendant, a college graduate, had had
previous experience with police prior to the interview and
had waived his Miranda rights before speaking to police.
Early on, investigators informed the defendant that he was
not a suspect in the murder, but that they were attempting to
piece together a timeline of the victim's death. The
defendant was cooperative with the investigators: he
voluntarily gave them his cell phone and signed a consent
form to allow them to search it. He also allowed police to
photograph the absence of injuries on his hands and to swab
him for blood residue.
defendant never was told that he was in custody or that he
could not leave the station. Although one of the officers
conducted a quick pat-down of the defendant at one point,
that officer did so only when the officers observed the
defendant scratching himself, which the defendant explained
as a manifestation of his heroin addiction. During two
breaks, the defendant was escorted to the bathroom and
outside to have a cigarette.
one break, the investigators told the defendant that Garcia
had given them more information than the defendant had
provided and suggested that he was not telling them the
complete truth. It was then that the defendant indicated that
David was the last person to see the victim alive. The
defendant further offered to "set up a drug deal"
so that investigators could investigate David. The
investigators agreed and the defendant left the station to
complete the controlled drug purchase with David.
the controlled drug purchase, the defendant accompanied
police back to the station and again was seated in the
meeting room, but he was not told that he could not leave the
station. Shortly after 9 £.M., police held a second
interview with the defendant, in which he told them that the
first television had been sold to Jason McCarthy. The second
interview lasted for a few minutes. Police confirmed
David's alibi for the night of the murder. They also
learned from McCarthy that the first television had blood on
it and that McCarthy had seen the defendant with blood on him
when he delivered it. After police received this information,
a third interview with the defendant was conducted. At the
start of that interview, the defendant invoked his right to
counsel, and he was arrested.
warnings are required only when a suspect is subject to
custodial interrogation. Commonwealth v.
Jung, 420 Mass. 675, 688 (1995) . The defendant
bears the burden of proving that he was in custody for the
purposes being entitled to a recitation of Miranda warnings
prior to questioning. Commonwealth v.
Girouard, 436 Mass. 657, 665 (2002) .
interview is custodial where "a reasonable person in the
suspect's shoes would experience the environment in which
the interrogation took place as coercive" (citation
omitted). Commonwealthv.Cawthron, 479 Mass. 612, 617 (2018). Four factors