Commonwealth v. Andre

• Decision Date: 02 April 2020
• Docket Number: SJC-12060
• Citation: 484 Mass. 403,142 N.E.3d 60
• Parties: COMMONWEALTH v. Steven ANDRE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

484 Mass. 403

142 N.E.3d 60

COMMONWEALTH

v.Steven ANDRE.

SJC-12060

Supreme Judicial Court of Massachusetts, Suffolk..

Argued November 8, 2019

Decided April 2, 2020

William S. Smith, Northboro, for the defendant.

Darcy Jordan, Assistant District Attorney (John P. Pappas, Assistant District Attorney, also present) for the Commonwealth.

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

LOWY, J.

A Suffolk County grand jury indicted the defendant, Steven Andre, on two counts of murder in the first degree, as well as on counts of possession of a firearm without a license, assault by means of a dangerous weapon, and armed robbery. Before trial, the defendant filed a motion to suppress evidence that police discovered upon executing several search warrants, which the motion judge denied. A jury convicted the defendant of both counts of murder on the theory of deliberate premeditation, as well as the three other charges, and the trial judge sentenced him to life imprisonment without the possibility of parole.¹

On appeal, the defendant seeks reversal, assigning error to (1) the motion judge's denial of the defendant's motion to suppress evidence; (2) the trial judge's admission in evidence of a document that constituted inadmissible hearsay and failure to give the requisite jury instruction; (3) the trial judge's admission of testimony concerning firearms, which were allegedly dissimilar to the murder weapon, that the defendant possessed a week prior to the murders; (4) the trial judge's jury instruction regarding the firearms testimony, which he argues created a substantial likelihood of a miscarriage of justice; and (5) the prosecutor's improper statements made in his closing argument, allegedly prejudicing the defendant and violating his constitutional rights. The defendant also requests that we exercise our power pursuant to G. L. c. 278, § 33E, to reduce the murder verdicts or to grant a new trial. Finding neither reversible error nor a reason to exercise our authority under G. L. c. 278, § 33E, we affirm.

Background. We summarize the facts the jury could have found, reserving some details for later discussion.

1. The murders. On September 6, 2010, Angel Acevedo and Jenret Appleberry were fatally shot in their apartment in Chelsea (apartment). On the evening of September 5, the victims had been at the apartment with their roommate, Luis Rodriguez, and Rodriguez's five year old son.² The defendant arrived at the apartment after midnight on September 6. At some point thereafter, Rodriguez and his son went to sleep in Rodriguez's bedroom with the lights off. The victims and the defendant remained in the living room. Between 1 and 2 A.M. , the sound of two gunshots awakened Rodriguez. The defendant then entered Rodriguez's bedroom, turning on the light with one hand, and pointing a gun at Rodriguez and Rodriguez's son with his other hand. At gunpoint, the defendant forced Rodriguez, who was holding his son and refused to put him down, to search through the victims' bedrooms for money. The defendant told Rodriguez that he had heard that there was $50,000 somewhere in the apartment, that the defendant had been watching the apartment for about two weeks, and that someone offered to pay him $25,000 to kill the victims because they were informants. Even though Rodriguez said he did not know about any money, the defendant threatened to kill both Rodriguez and Rodriguez's son if Rodriguez's son looked at him or if Rodriguez did not reveal the money's location.

The defendant then directed Rodriguez to go into the living room to search for shell casings. Once in the living room, Rodriguez saw the victims' bodies. The defendant took money from Acevedo's pocket, ripping it in the process. The defendant told Rodriguez to use a shirt to wipe down anything the defendant may have touched, and Rodriguez complied. From the living room, the defendant took a PlayStation 3 gaming console (PS3) and put it into a suitcase he took from a closet.³ While still at the apartment, the defendant used Rodriguez's cell phone, telling the person on the other line, "it's done."

The defendant eventually let Rodriguez and his son leave the apartment, at which point they walked to Rodriguez's father's house. Approximately six hours later, Rodriguez's parents reported the shootings to the police.⁴

2. Police investigation. When the police arrived at the apartment on September 6, 2010, the victims' bodies were in the living room. Appleberry had been shot in the head at close range, and Acevedo had been shot three times in the head. There were no signs of forced entry. After Rodriguez identified the defendant as the person who committed the murders, the police arrested the defendant and executed a search warrant at the apartment where he lived with his girlfriend and his cousin. In the defendant's bedroom, the police found a gold, square earring and a white watch. In his cousin's bedroom, the police found a PS3 and a different gold earring. Appleberry's family identified the watch and an earring as belonging to Appleberry.⁵ The PS3 was also later linked to Appleberry.⁶

Discussion. 1. Standard of review. Upon a defendant's direct appeal from a capital conviction, we conduct a plenary review of the record for error pursuant to statutory mandate. See G. L. c. 278, § 33E. Where we discern an error to which the defendant did not object at trial, we review for a substantial likelihood of a miscarriage of justice. See Commonwealth v. Gonzalez, 469 Mass. 410, 415-416, 14 N.E.3d 282 (2014). Where the record reflects an error that the defendant preserved below, we apply the ordinary standard of review ascribed to errors of that type in all appeals. See Commonwealth v. Upton, 484 Mass. 155, 160, 139 N.E.3d 1159 (2020).

2. Motion to suppress. When reviewing a decision on a motion to suppress, "we accept the judge's subsidiary findings of fact absent clear error, but conduct an independent review of [the] ultimate findings and conclusions of law" (quotation and citation omitted). Commonwealth v. Colon, 449 Mass. 207, 214, 866 N.E.2d 412 (2007), cert. denied, 552 U.S. 1079, 128 S.Ct. 810, 169 L.Ed.2d 611 (2007). We recite the facts as the motion judge found them, supplemented by certain necessary, uncontested facts from the motion hearing record. See id.

Rodriguez spoke to the police on three separate occasions in the days following the murders: on September 6, 7, and 11, 2010. On September 6, Rodriguez told the police that two masked men shot his roommates. Based in part on Rodriguez's statements, the police applied for and received search warrants for the apartment and for the victims' and Rodriguez's cell phones. On September 7, the police interviewed Rodriguez's young son, who said that only one of the men who entered the apartment was masked. Later that day, the police confronted Rodriguez with the inconsistencies between his and his son's statements, but Rodriguez maintained that there were two masked men.

Finally, on September 11, 2010, Rodriguez informed the police that the defendant had committed the murders alone. Rodriguez also told the police that he lied initially because he feared someone would kill him and his son. Based in part on Rodriguez's newest statements, State police Trooper Kevin Sweeney applied for and received five additional search warrants.⁷ In the affidavits supporting each of the five additional search warrant applications, Sweeney omitted both Rodriguez's prior contradictory statements and the statements Rodriguez's son made to police.

Prior to trial, the defendant moved to suppress the evidence seized pursuant to the latter five search warrants. Citing Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the defendant argued that material omissions in the affidavits supporting the search warrants rendered the search warrants invalid. The record is unclear both whether the defendant's motion contained a request for a hearing under Franks to determine the veracity of the search warrants and whether the hearing that the defendant received constituted a Franks hearing. Id. at 155-156, 98 S.Ct. 2674. The motion judge, however, denied the defendant's motion, concluding that the omission of Rodriguez's and his son's prior statements in the warrant affidavits did not "demonstrate that the warrant affidavits were knowingly or recklessly false on the essential facts that were material to probable cause for the warrants."⁸ On appeal, the defendant argues that the judge applied the incorrect standard.

The defendant is entitled to a Franks hearing only if he makes two "substantial preliminary showing[s]." Commonwealth v. Long, 454 Mass. 542, 552, 911 N.E.2d 174 (2009), S.C., 476 Mass. 526, 69 N.E.3d 981 (2017), quoting Franks, 438 U.S. at 155, 98 S.Ct. 2674. First, the defendant must demonstrate that the affiant included "a false statement knowingly and intentionally, or with reckless disregard for the truth" or intentionally or recklessly omitted material in the search warrant affidavit. Long, supra, quoting Franks, supra at 155-156, 98 S.Ct. 2674. Second, the defendant must show that "the allegedly false statement is necessary to the finding of probable cause," Long, supra, quoting Franks, supra at 156, 98 S.Ct. 2674, or that the inclusion of the omitted information would have negated the magistrate's probable cause finding, see Commonwealth v. Corriveau, 396 Mass. 319, 334-335, 486 N.E.2d 29 (1985) (affidavit with omitted material "would not have conveyed a significantly different message" regarding probable cause from that in submitted affidavit without omitted material). See also United States v. McLellan, 792 F.3d 200, 208 (1st Cir.), cert. denied, ––– U.S. ––––, 136 S. Ct. 494, 193 L.Ed.2d 360 (2015), quoting United States v. Rigaud, 684 F.3d 169, 173 n.5 (1st Cir. 2012) ("In the case of an omission, this means establishing that the inclusion of the omitted information ‘would have led to a negative finding by the magistrate...