Supreme Judicial Court of Massachusetts, Plymouth
Heard: March 8, 2019.
found and returned in the Superior Court Department on June
pretrial motion to suppress evidence was heard by Joseph M.
Walker, III, J.; the cases were tried before Charles J. Hely,
J., and motions for a new trial, filed on August 27, 2014,
and for postconviction discovery, filed on October 31, 2014,
were considered by him.
Hetherwick Pumphrey for the defendant.
Yeshulas, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Lenk, Lowy, Budd, & Kafker, JJ.
convicted the defendant, Paulo Tavares, of murder in the
first degree on the theories of deliberate premeditation and
extreme atrocity or cruelty. On appeal, the defendant raises
three main issues. First, he argues that a Superior Court
judge (motion judge) erred in denying his pretrial motion to
suppress evidence obtained from the search and seizure of a
motor vehicle in which he was a passenger. Second, he argues
that a second Superior Court judge (trial judge) improperly
admitted evidence of the defendant's involvement in a
prior shooting. Finally, he argues that the trial judge erred
in denying the defendant's postconviction motions for a
new trial based on ineffective assistance of counsel and for
discovery of wiretap recordings of his conversations with a
reasons set forth infra, we conclude that the motion
judge committed reversible error in denying the
defendant's motion to suppress. We also find that the
defendant's motion for a new trial was properly denied,
but that his motion for discovery should have been granted.
Accordingly, we vacate the convictions and remand for a new
trial consistent with this opinion.
recite the facts the jury could have found, reserving certain
details for discussion of legal issues.
evening of May 21, 2007, John Lima was driving his
sister's Nissan Altima automobile, along with his friend
Jorell Archer, on a street in Brockton. According to Archer,
another car sped up and began to "tail" them with
its high beam lights activated. Lima became
"aggravated" and applied his brakes, giving the car
behind him a "brake job" as it followed them. The
other car then drove up to the passenger's side of the
Altima, and someone fired seven or eight gunshots at them.
attempted to shield himself from the shots but could not do
so because he was driving. He then turned into a nearby
parking lot, where the Altima slowed down and rolled into an
apartment building. At that point, Archer noticed that Lima
had been shot. Lima stated, "I'm hit, I'm
hit," and twice indicated to Archer that he believed he
was dying. The other car quickly sped away before Archer
could determine the type of car or the number of people
found the Altima crashed into the building with all four of
its windows shattered. Archer was standing in front of the
open driver's side door, while Lima was lying
unresponsive in the driver's seat. Lima was immediately
transported to the hospital, where he died shortly
thereafter. An autopsy later revealed that he had been shot
three times. The medical examiner concluded that the cause of
death was due to gunshot wounds.
scene, the police interviewed an eyewitness, Nicholas Melo,
who had been sitting on his porch when he heard eight or nine
loud bangs. Melo then witnessed a car round the corner near
his house, hit the curb, and speed down the street. Melo
initially told the police that he saw a Chevy Malibu Max, but
later described it as a regular Chevy Malibu.
after the shooting, a police officer, accompanied by a State
police trooper, was driving in an unmarked police cruiser in
Brockton when he passed a Chevy Malibu. The officer began
searching for the Malibu, believing that he recognized an
individual with an active arrest warrant in the back seat. A
few minutes later, he identified the Malibu and stopped it.
approached the vehicle, the officer quickly realized that the
individual he was looking for was not in the back seat.
Instead, he found Christopher Hanson in the driver's
seat, the defendant in the front passenger's seat, and
Eddie Ortega in the back seat. The officer made brief
conversation with the three occupants before learning that
Hanson was not on the rental agreement for the vehicle. The
officer then advised Hanson that because he was not listed on
the rental agreement, the vehicle would have to be towed. All
three occupants left on foot. The officers did not search the
Malibu before towing it to the police station. The officers
then brought Melo to the police station, where he told the
officers that he was "sure" that the Malibu was the
same car he had seen the night before and stated that it
should have scrape marks underneath the front driver's
side quarter and the rear passenger's side quarter -
where the car had gone over the curb. He and a detective both
looked under the Malibu, and the detective observed what
appeared to be fresh scrape marks in the area where Melo said
they would be.
trial, Ortega testified about the moments immediately
preceding the motor vehicle stop. While riding in the back
seat of the Malibu, Ortega heard the defendant and Hanson
discuss the shooting that had occurred the previous night.
During this conversation, the defendant stated that he had
shot the wrong person, and that the shooting was not supposed
to "go down" like it had. Ortega also heard the
defendant admit to using a .22 caliber handgun in the
shooting. Additionally, Ortega testified that just before the
vehicle was stopped, Hanson quickly turned onto a side
street. At that moment, the defendant took a .22 caliber
handgun out of the glove compartment and threw it onto a
nearby residential lawn. After their encounter with the
police officer, the three occupants returned to the side
street and retrieved the gun.
Commonwealth's primary witness at trial was Raymond
Grinion, one of the defendant's friends and business
associates. The defendant and Grinion sold drugs together in
Brockton. For several years prior to the shooting, Grinion
worked on and off with Brockton Police Detective Christopher
McDermott as a paid confidential informant.
between December 2006 and January 2007, Grinion stole a .22
caliber handgun from a residence in New Hampshire. He kept it
for about two weeks before selling it to Jose Santos. In
March or April 2007, Santos gave the handgun to the
defendant. Grinion testified that he saw the defendant in
possession of the gun "on numerous occasions."
after the shooting, Grinion received a call from the
defendant. During the call, the defendant told Grinion to get
rid of his cell phone because the police had "snatched
up" his girlfriend and she had given his cell phone
number to them. When Grinion asked for details, the defendant
responded that it was about the "homeboy" he had
"bodied last night." Grinion testified that he
believed this to mean that the defendant had killed someone
the night before.
this conversation with the defendant, Grinion apparently told
Detective McDermott that he believed the defendant was
involved in the murder of Lima. He also informed McDermott
that the defendant admitted to using a .22 caliber handgun in
the shooting. Grinion then made arrangements with the police
to conduct a controlled purchase of the gun from the
the next several days, the defendant made various
incriminating statements to Grinion about his involvement in
the shooting. Two days after the shooting, Grinion told the
defendant that Santos was upset about the murder of Lima. In
response, the defendant stated, "I know that. That was
my man too," and he further indicated that "it was
the wrong dude. We hit the wrong dude." The defendant
also stated that he was not worried about his earlier
encounter with the police because "he ha[d] shooting
cases in the past," and because he knew "how to get
out of the car and to shoot." He further explained that
the officer was joking with him and that "he
[didn't] think they [had] much evidence." A few days
later, Grinion met the defendant at an apartment in Fall
River, where he saw the defendant with the 22 caliber
28, 2007, Grinion conducted a controlled purchase of the .22
caliber gun from the defendant. When he gave Grinion the gun, the
defendant instructed him not to "drop any of the
shells" if Grinion used the gun because it was connected
to a murder and another shooting. Grinion asked whether the
defendant had used the gun to kill someone, and the defendant
responded that "whoever bought it, they don't need
to know all that."
31, 2007, Grinion returned to the apartment to meet with the
defendant. At that time, Grinion again told the defendant
that Santos was upset about the shooting. The defendant
became irritated and responded that Grinion had "a big
mouth." He also indicated that he did not want Santos to
know that he had lied about his involvement in the murder.
1, 2007, the police executed an arrest warrant for the
defendant. The police then searched the Fall River apartment
and recovered thirteen .22 caliber live rounds. At trial, the
Commonwealth introduced ballistics evidence collected from
the scene of the shooting, which occurred on Main Street
(Main Street shooting), including several .22 caliber shell
casings. A ballistics expert compared these shell casings to
the .22 caliber gun recovered from the controlled purchase,
and concluded that at least some of the casings were fired
from that gun.
the defendant's objection, the Commonwealth also
introduced evidence relating to the defendant's
involvement in an earlier shooting that occurred about one
month prior to Lima's killing on Exchange Street in
Brockton (Exchange Street shooting). Grinion testified that
the defendant admitted to using the .22 caliber handgun in
the Exchange Street shooting. A ballistics expert also
confirmed that three .22 caliber shell casings recovered from
the scene of the prior shooting were fired from the .22
caliber handgun introduced in this case.
jury eventually returned guilty verdicts on all three
charges. The defendant now appeals.
Motion to suppress.
defendant argues that the motion judge erred in denying his
pretrial motion to suppress evidence obtained from the search
and seizure of the Malibu.
reviewing the denial of a motion to suppress, we accept the
motion judge's "subsidiary findings absent clear
error but conduct an independent review of [the] ultimate
findings and conclusions of law" (quotations omitted).
Commonwealth v. Jones-Pannell, 472 Mass. 429, 431
(2015), quoting Commonwealth v. Ramos, 470 Mass.
740, 742 (2015). The judge's subsidiary findings may be
supplemented with "uncontroverted and undisputed"
evidence "where the judge "explicitly or implicitly
credited the witness's testimony."
Jones-Pannell, supra, quoting
Commonwealth v. Isaiah I., 448 Mass. 334, 337
(2007), S.C., 450 Mass. 818 (2008).