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Commonwealth v. Tavares

Supreme Judicial Court of Massachusetts, Plymouth

July 26, 2019


          Heard: March 8, 2019.

         Indictments found and returned in the Superior Court Department on June 29, 2007.

         A 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.

          Janet Hetherwick Pumphrey for the defendant.

          Laurie Yeshulas, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Lenk, Lowy, Budd, & Kafker, JJ.

          KAFKER, J.

         A jury convicted the defendant, Paulo Tavares, of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty.[1] 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 confidential informant.

         For the 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.[2]


         We recite the facts the jury could have found, reserving certain details for discussion of legal issues.

         On the 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.

         Lima 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 inside it.

         Police 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.

         At the 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.

         The day 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.

         As he 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.

         At 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.

         The 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.

         Sometime 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."

         The day 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.

         Following 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 defendant.

         Over 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 handgun.

         On May 28, 2007, Grinion conducted a controlled purchase of the .22 caliber gun from the defendant.[3] 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."

         On May 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.

         On June 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.

         Over 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.

         The jury eventually returned guilty verdicts on all three charges. The defendant now appeals.


         1. Motion to suppress.

         The defendant argues that the motion judge erred in denying his pretrial motion to suppress evidence obtained from the search and seizure of the Malibu.

         In 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).

         a. Re ...

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