April 1, 2019
N.E.3d 1071] INDICTMENTS found and returned in the Superior
Court Department on February 27, 2014, and April 11, 2014.
The cases were tried before Renee P. Dupuis, J.
H. O’Brien, Billerica, for Hailton DaCosta.
C. Nadeau, Assistant District Attorney, for the Commonwealth.
Thompson (Linda J. Thompson also present) Springfield, for
Kinder, Singh, & McDonough, JJ.
N.E.3d 1072] On 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 second
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, 383 N.E.2d
835 (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, 393 N.E.2d 370');">393 N.E.2d 370 (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.
Baptista 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 [132 N.E.3d 1073] 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 area.
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
Baptista 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
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 care."
Neither defendant testified. Their theory of defense was that
Baptista and Mendes were responsible for the victim’s death,