Heard: April 1, 2019.
found and returned in the Superior Court Department on
February 27, 2014, and April 11, 2014.
cases were tried before Renee P. Dupuis, J.
Jennifer H. O'Brien for Hailton DaCosta.
Stephen C. Nadeau, Assistant District Attorney, for the
Commonwealth. John M. Thompson (Linda J. Thompson also
present) for Antonio Rodrigues.
Present: Kinder, Singh, & McDonough, JJ.
November 23, 2013, defendants Hailton DaCosta and Antonio
Rodrigues, together with Samir Baptista and Elito Mendes,
executed a plan to rob drug dealer Sharone Stafford in New
Bedford. Stafford was fatally shot by DaCosta during the
botched robbery. The defendants were indicted for murder, G.
L. c. 265, § 1, armed assault with intent to rob, G. L.
c. 265, § 18 (b), and unlawfully possessing a firearm,
G. L. c. 269, § 10 (a.) . Baptista and Mendes agreed to
cooperate with the Commonwealth, pleaded guilty to various
offenses, and testified against the defendants at a joint
trial. A Superior Court jury found the defendants guilty of
unlawful possession of a firearm and felony-murder in the
defendants' principal claim of error on appeal is that
the judge failed to conduct individual voir dire of the
jurors to determine the extent and effect of the jury's
exposure to excluded evidence during deliberations, as
required by Commonwealth v. Jackson, 376 Mass. 790
(1978), and its progeny. The judge further erred, they claim,
in failing to declare a mistrial on that basis. The
defendants raise several other claims including the
sufficiency of the evidence, the propriety of the
prosecutor's closing argument, and the failure to
instruct on felony-murder and merger. We affirm.
summarize the evidence in the light most favorable to the
Commonwealth, see Commonwealth v. Latimore, 378
Mass. 671, 677-678 (1979), reserving some facts for our
discussion of the issues. In 2013, Baptista regularly used
"crack" cocaine purchased on many occasions from
the defendants, Mendes, and the victim. In the week before
the murder, Rodrigues told Baptista that he (Rodrigues)
planned to rob other drug dealers to "get the[m] off the
streets." On November 23, 2013, Baptista bought cocaine
from Rodrigues in the parking lot of the Portuguese Sports
Club (club) in New Bedford. At the time, Rodrigues was in
Mendes's black Nissan Sentra with Mendes and DaCosta;
DaCosta asked Baptista to call drug dealers to help him
(DaCosta) with his plan to rob them. Baptista agreed to help
later that evening, as the defendants and Mendes continued
discussing their scheme to rob drug dealers. Baptista called
various dealers and eventually arranged to meet the victim on
Winsor Street to purchase cocaine. Rodrigues gave Baptista
money so as not to arouse the victim's suspicion.
defendants, Mendes, and Baptista left the club in the Nissan.
Before departing, Mendes and DaCosta retrieved DaCosta's
handgun from the Nissan's trunk. They dropped Baptista
off near Winsor Street to avoid being seen by the victim.
walked to Winsor Street, located the victim, and entered his
car. As they talked, the Nissan drove by. The victim became
suspicious and ordered Baptista out of his car. As Baptista
left the victim's car, Mendes parked the Nissan and the
defendants got out. DaCosta approached the victim's car
and opened the driver's door. After DaCosta and the
victim "had words," the victim closed the door and
DaCosta shot him twice through the car window. DaCosta ran to
Mendes's car, he and Rodrigues got in, and Mendes drove
away. Meanwhile, Baptista approached the victim, who lay dead
on the street. He searched the victim's car for drugs or
money but found none. Baptista took a cell phone and left the
the shooting, the defendants and Mendes returned to the club
where Mendes moved the gun from under the passenger seat of
the Nissan to DaCosta's mother's car. Inside the
club, Rodrigues and Mendes asked DaCosta why he had shot the
victim. DaCosta explained that the victim had been trying to
take the gun from him. He then physically demonstrated how he
shot the victim by raising his right hand parallel to the
ground. Meanwhile, Baptista went to a bar after the shooting,
then returned to the club to look for Rodrigues. By the time
Baptista returned to the club, the defendants and Mendes had
left the club and met the defendants and Mendes on Division
Street, where he told them that the victim was dead. DaCosta
threatened to kill Baptista and his family if he went to the
police. Rodrigues intervened and assured DaCosta that
Baptista would remain silent. When Baptista showed them the
victim's cell phone, DaCosta took it and smashed it on
the ground. Baptista gave Rodrigues his money back. Baptista
then went to a Hess gas station where he told the attendant
that he had just shot someone with a shotgun. After smoking
crack cocaine, Baptista returned to the crime scene, where
police officers observed him pacing and saying, "I
can't believe this happened." Baptista was taken to
the police station where he agreed to cooperate.
the murder weapon was never found, two spent projectiles and
two shell casings were recovered from the victim's body
and the crime scene. A ballistics examination revealed that
the projectiles were .38 caliber class ammunition. Pursuant
to a plea and cooperation agreement, Baptista agreed to
testify truthfully in exchange for a joint recommendation of
a nine to ten-year prison sentence on an indictment charging
assault with intent to rob. Similarly, Mendes agreed to
cooperate in exchange for a seven to fifteen-year prison
sentence on a "reduced charge." Baptista's and
Mendes's plea agreements were introduced in evidence at
trial, and the judge instructed the jury before they
testified that, bearing in mind the potential "future
benefits" conferred by the plea agreements, the jury
were to examine their testimony "with caution and great
defendant testified. Their theory of defense was that
Baptista and Mendes were responsible for the victim's
death, and that their testimony should not be believed.
Exposure to ...