Com. v. Semedo

• Decision Date: 04 February 2010
• Docket Number: SJC-09799
• Parties: COMMONWEALTH v. Isaias SEMEDO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

921 N.E.2d 57

456 Mass. 1

COMMONWEALTH v. Isaias SEMEDO.

SJC-09799

Supreme Judicial Court of Massachusetts, Suffolk.

Argued November 6, 2009.

Decided February 4, 2010.

Donald A. Harwood for the defendant.

Macy Lee, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., COWIN, CORDY, BOTSFORD, & GANTS, JJ.

COWIN, J.

The defendant was convicted by a jury in the Superior Court of murder in the first degree on the theory of felony-murder with armed robbery as the predicate felony. He was also convicted of armed robbery.¹ Represented by new counsel on appeal, the defendant claims that there was insufficient evidence to sustain his convictions as a joint venturer; the prosecutor's closing argument was improper in several respects; the judge erred by declining to instruct on the inadequacies of the police work, see Commonwealth v. Bowden, 379 Mass. 472, 485-486, 399 N.E.2d 482 (1980); there was an unconstitutional variance between the theory at the grand jury and the evidence at trial; and the judge did not comply with the requirements of G.L. c. 234, § 34, regarding the failure of the jury to agree on a verdict. In addition, the defendant asserts that the judge erred by denying his motion for a voir dire of a juror who had written a postverdict letter to the judge complaining of pressure by other jurors. The defendant requests also that we exercise our extraordinary power under G.L. c. 278, § 33E, to reverse the convictions and order dismissal of the charges or, in the alternative, to grant him a new trial. We reject the defendant's claims, affirm his conviction of murder in the first degree, and decline to exercise our power to grant extraordinary relief pursuant to G.L. c. 278, § 33E.²

Because we affirm his conviction of felony-murder, and armed robbery was the predicate felony, we vacate as duplicative his armed robbery conviction and dismiss the underlying indictment. See Commonwealth v. Gunter, 427 Mass. 259, 275-276, 692 N.E.2d 515 (1998) ("When a murder conviction is based on a felony-murder theory, the underlying felony, whatever it may be, is always a lesser included offense and the conviction for that felony, in addition to the conviction of murder, is duplicative").³

1. Facts and procedural background. Because the defendant challenges the sufficiency of the evidence, we summarize the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Cannon, 449 Mass. 462, 467, 869 N.E.2d 594 (2007). We leave certain evidence that is unnecessary for the sufficiency of the evidence analysis for discussion of other issues raised by the defendant. It was the Commonwealth's theory at trial that the defendant and his codefendant, Danilo Lopes, engaged in a joint venture to rob the victim, Jorge Fidalgo, and that, during the course of the robbery, the victim was shot and killed. Because the codefendant Lopes confessed to the killing, he and the defendant were tried separately. The case against the defendant was entirely circumstantial, the Commonwealth relying primarily on descriptions of the perpetrator and the defendant's presence in a van in Brockton approximately one and one-half hours after the murder while apparently in possession of one-half of the proceeds of the robbery.

The victim and his wife owned a convenience store known as Davey's Supermarket, located at the corner of Dudley and Clarence Streets in the Roxbury section of Boston. Each morning, between 9:30 and 10 A.M., the victim would bring the store's receipts to deposit at two banks. Customarily, his wife would wrap the cash by denomination with a brown paper counting band around each packet. The deposits would include checks and government vouchers as well as cash.

On the morning of April 23, 2001, the victim and his wife drove to work at Davey's Supermarket at about 8 A.M. and parked their minivan on Clarence Street. At approximately 9:45 A.M., the victim's wife handed him two bags. The bag for Sovereign Bank contained $4,125 in cash, as recorded on a copy of the deposit slip that the victim's wife retained for the store's records. Checks and government vouchers were also in the bag. A second bag with similar contents was prepared for Citizens Bank. The money was packaged in brown paper counting bands, with the various denominations separated and bound together by the paper counting bands. For example, the one-dollar bills were in packets of twenty-five dollars each. The victim left the store to make his deposits.

Minutes before the shooting, Antonio Fidalgo, a cousin of the victim,⁴ saw a long brown van⁵ parked in front of 47 Clarence Street. The van had tinted windows and a Cape Verdean flag hanging from the interior rear view mirror. The driver was a skinny-faced, dark-complected man wearing a "Jamaican hat" of the type that "somebody that has ... dreadlocks" would wear. (A police sergeant described a "Jamaican hat" as one that is green, red and yellow.) Antonio Fidalgo saw a second person moving in the back seat area of the van but was unable to describe this individual. Antonio Fidalgo did an errand on Clarence Street, and fifteen minutes later, he discovered the victim slumped in the seat of his minivan. The long brown van was no longer on Clarence Street.

The police responded to a 911 call and found the victim in his minivan with a gunshot wound behind his left ear.⁶ The vehicle was stopped in the middle of the street in front of 47 Clarence Street with its engine still running. Only the bag containing the deposit for Citizens Bank was found in the vehicle. The second bag containing the money and other items for deposit at Sovereign Bank was not present.

Antonio Fidalgo reported to the police his observations of the long brown van and its occupants. Based on police information that a large Cape Verdean population resides in the Brockton area, the Boston police notified the Brockton police of the information provided by Antonio Fidalgo. At about 11:15 or 11:20 A.M., approximately one and one-half hours after the victim had been shot, a Brockton school police officer working a road detail in Brockton heard a police radio broadcast that a brown van with tinted windows and a Cape Verdean flag was wanted in connection with a Boston homicide. The officer saw such a vehicle stopped next to him in traffic; he radioed for assistance, and other officers arrived.

An officer approached the driver and inquired whether he had just come from Boston. When the driver, later identified as Lopes, responded affirmatively, he and the defendant were ordered out of the van, handcuffed, and pat frisked for weapons. No weapons were discovered.

Two officers entered the van. The first officer went into the van to retrieve Lopes's identification after Lopes indicated that his license was in the van. The second officer entered to ascertain that no one else was in the vehicle. The officers discovered two articles of clothing in the rear of the van: a denim vest (described also as a coat) and a gray velour jacket. A wallet containing Lopes's driver's license was retrieved from a pocket of the vest. In the gray velour jacket, the police observed a "large sum of money," "maybe an ... inch and a half thick." This money was later determined to be $2,006 in cash, and some of it was wrapped in brown paper counting bands of the type used by the victim's wife to wrap the deposits.⁷

At this point, the handcuffs were removed from the two men, and they were asked if they would agree to wait for Boston detectives to arrive to question them. They agreed to do so. The Boston police arrived, accompanied by Antonio Fidalgo, who identified the van as the one he had seen parked in front of 47 Clarence Street just before his cousin was shot. Antonio Fidalgo did not, however, identify either of the individuals as the driver or passenger of the van. He did observe that the defendant had dreadlocks. The van was impounded and towed by the police. Neither of the two men was arrested. They remained free until two days later.

Pursuant to a search warrant, the Boston police searched the impounded van. The search warrant authorized the police to seize the items they had earlier observed in the van, i.e., the denim vest, the gray velour jacket, and the $2,006 in cash originally found in the gray jacket. Two Minute Maid orange drink bottles were also found in the van. No fingerprints of either Lopes or the defendant were found on the inside of the van.

The van had been loaned to Lopes for the day by an acquaintance, Lionel Goncalves. By prearrangement, Lopes, unaccompanied, picked up the van at 7 A.M. on April 23, 2001, and drove Goncalves to work at about 7:30 A.M. None of the above-described items later found in the van belonged to Goncalves or were in the van when he loaned it to Lopes.

On April 25, 2001, Lopes, who had not yet been arrested, gave the police $2,000 in cash.⁸

The police located a white Nissan 240SX automobile parked on Otis Street around the corner from the scene of the shooting. The automobile belonged to Simone Hutcheon. On April 25, 2001, two days after the murder, the defendant was arrested at a home in Meriden, Connecticut, where Simone Hutcheon was present.⁹ The defendant was photographed on the day of his arrest, and he was wearing dreadlocks. He also has a thin face and is dark-complected.

The sales manager of an automobile parts store in Brockton was familiar with the defendant as a regular customer of his store. Ordinarily, when the defendant came into the store he was wearing a green, red, and orange knit hat over his dreadlocks. On the day of the murder, the defendant, accompanied by a second man, entered the store sometime after 10 A.M. The defendant was wearing dreadlocks, a green, red, and orange hat, and a dark jacket. The men had a bag with them, "like a duffle bag." They bought drinks from a dispenser that sold Minute Maid orange drinks and went out back for a short time. They did no business in the...