Commonwealth v. CARNES

• Decision Date: 09 September 2010
• Docket Number: SJC-10523.
• Citation: Commonwealth v. Carnes, 457 Mass. 812, 933 N.E.2d 598 (Mass. 2010)
• Parties: COMMONWEALTH v. Calvin CARNES, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

457 Mass. 812

933 N.E.2d 598

COMMONWEALTH

v.Calvin CARNES, Jr.

SJC-10523.

Supreme Judicial Court of Massachusetts,Suffolk.

Argued May 7, 2010.

Decided Sept. 9, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Ellen J. Zucker, Boston, for the defendant.

David D. McGowan, Assistant District Attorney(Joshua I. Wall, Assistant District Attorney, with him) for the Commonwealth.

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

COWIN, J.

Following the shooting of four men in the basement of a home in the Dorchester section of Boston on December 13, 2005, the defendant, Calvin Carnes, Jr., was convicted in the Superior Court of four counts of murder in the first degree on theories of deliberate premeditation and felony-murder.The victims were Edwin Duncan, Christopher Vieira, Jason Bachiller, and Jihad Chankhour.The defendant was convicted also of three counts of armed robbery; two counts of possession of a firearm without a firearm identification (F.I.D.) card; possession of a large capacity firearm; and larceny over $250.

On appeal, the defendant contends that the motion judge (who was not the trial judge) improperly denied his motions to suppress his statements to the police.With respect to the trial, he asserts that the evidence was insufficient to justify an instruction on joint venture on the armed robbery and firearms charges, and that the judge erred also by admitting in evidence charts summarizing telephone records and related testimony.With respect to the jury deliberations, the defendant alleges that another judge ¹ acted improperly when she(a) dismissed a deliberating juror; (b) refused to declare that deliberations had been due and thorough, seeG.L. c. 234, § 34; and (c) despite allegations of misconduct by jurors, refused to inquire of the jurors or declare a mistrial.We reject the defendant's claims, affirm his convictions, and, after review of the entire record pursuant to our responsibility under G.L. c. 278, § 33E, decline to exercise our power to grant extraordinary relief.

1.Facts.We summarize the facts the jury could have found.Other evidence is discussed in conjunction with the specific issues raised.On the evening of December 13, 2005, four young men were shot to death in the basement of the Bourneside Street home of the victim Duncan.Three of the four victims had gathered frequently at that location to listen to and record music and “hang out.”The fourth, Chankhour, was not a frequent participant, but was present that night to repair some of the recording equipment.The group had no disputes or “problems” with any other groups of people, and its members got along well with each other.The young men were serious about their music and dedicated to it and to a music recording group they had formed.The defendant was friendly with some members of the group, but was not ordinarily present during the basement music sessions.

Two guns were often seen in the basement: an AK-47 assault rifle and a Mosberg pump action shotgun.These weapons were used for sound effects in recording music and also for the protection of expensive recording equipment.A “rule” of the group was that all weapons must “come into the basement unloaded” to avoid accidents.Prior to the homicides, one of the victims, Vieira, had purchased a nine millimeter Glock pistol with green “glow in the dark” sights; he displayed it to numerous people, treating it “like a toy.”Two days before the murder, a person who was present early in the evening saw three guns in the basement: the AK-47 rifle, the shotgun, and Vieira's Glock pistol.

At about 9 p.m., Duncan's mother heard the sound of a gunshot and saw a male whom she did not recognize outside the house.He was standing near Vieira's black Ford Escort automobile, but did not look like Vieira.A neighbor heard two or three “pops” at about the same time and saw a dark automobile driving away from the Duncan home.Duncan's mother tried to reach her son on his cellular telephone; when she could not, she went to the basement and saw her son and one of the other victims lying on the floor “with blood everywhere.”She telephoned 911 and the police responded immediately.

There was no sign of a forced entry or any physical struggle.All four victims died of gunshot wounds.Twelve shell casings were found inside the basement and one outside.They were all fired from the same weapon and all were consistent with being fired from a nine millimeter Glock pistol.On the day after the murder, witnesses saw the defendant with a Glock handgun with green sights.That day he also mentioned to some friends that he had an “AK” and a “pump” that he wanted to sell.Six months later, a nine millimeter Glock pistol with green sights was found in the possession of a person with no apparent relation to the defendant.Test firing determined that this was the firearm used in the shootings.

Because the dark automobile that was seen departing the Duncan home might have been Vieira's (based on Duncan's mother's testimony that she saw a person standing near Vieira's black automobile), there was speculation at first that Vieira might have been the killer.On the night of the murder, Tanya Diaz spoke by telephone with the defendant and said she had heard that Vieira had killed some people.The defendant replied, “No, ‘Fat Boy’[Vieira's nickname] is dead.”

A few days after the killings, Vieira's automobile was found on a street in Dorchester, unlocked and with the keys in the ignition.A fingerprint located on the exterior door frame of the automobile was identified as the left index finger of the defendant.The automobile appeared to have been “wiped down” in places, including the driver's side door handle.

In February, 2006, the defendant admitted to his friends Maria Ortiz and Cynthia Small that he had committed the murders.He said, “It was an accident, they were [my] friends,” and he began to cry.He explained that he had been in the basement and that everyone had been looking at the Glock firearm and, when he held it, he became nervous and shot someone.Then, according to Small, the defendant said that “everyone crowded around him ... he just got more nervous and the gun went off and shot everyone.”The defendant also told Small that if Robert Turner, his friend who was in the basement at the time of the shootings, had not run when he did, “he would have died, too.”The defendant informed Ortiz that he had told the police that he had been with her the night of the murders and asked if she would corroborate his story.She did not respond.The defendant was arrested three months later on May 19, 2006.

The defendant testified that he had actually been with his friend, Turner, on the evening of December 13, 2005.Contrary to what he had told Ortiz, he testified that he was visiting with Katrina Hall at the time of the murders.He admitted that this alibi was different from the one he related to the police in two statements (seeinfra ) in which he denied being in the basement of Duncan's home on the night of the homicides and denied killing his friends.He testified also that he did not tell Ortiz and Small that he had committed the murders.

In rebuttal, the Commonwealth called Katrina Hall, who had a specific memory of watching the news on the night of the murders and seeing a report about the shootings.She was with her sister that night and had no visitors.Later that month, the defendant did visit her and took out a black pistol and put it under her mattress.She chastised him because her daughter was there.He also mentioned that he had an AK-47 rifle for sale.

2.Motions to suppress.The defendant made two statements to the police, one on December 22, 2005, and another on February 10, 2006.The defendant contends that both his statements should have been suppressed.We consider each in turn.

a. December statement.While the defendant's argument with respect to the December statement is not altogether clear, he appears to assert that he was subjected to a custodial interrogation that day and that, because he did not receive Miranda warnings, his statement must be suppressed.He maintains also that, apart from the requirement that Miranda warnings be provided, his statement was not made voluntarily because he was deprived of the information that was necessary to render the statement voluntary, i.e., that he was a suspect.

The motion judge found that the defendant was not in custody at the time of the December statement, and thus no Miranda warnings were required.SeeCommonwealth v. Groome,435 Mass. 201, 211-212, 755 N.E.2d 1224(2001), citingCommonwealth v. Morse,427 Mass. 117, 121-127, 691 N.E.2d 566(1998), andCommonwealth v. Bryant,390 Mass. 729, 737, 459 N.E.2d 792(1984).The police are not required to inform the defendant of his status as a suspect.SeeCommonwealth v. Groome, supra at 212 n. 13, 755 N.E.2d 1224.See alsoCommonwealth v. Raymond,424 Mass. 382, 393, 676 N.E.2d 824(1997)(“Neither the subject matter of the questioning nor the defendant's status as a suspect has any bearing on whether the defendant understands that he need not answer the questions”).Accordingly, the only question before us with respect to this statement is whether the judge's determination that the defendant was not in custody is supported by the evidence.We conclude that the finding is warranted.

i. Facts.We summarize the judge's comprehensive findings.A few days before the December 22, 2005, interview, Detective Russell Grant and Sergeant Detective James Wyse of the Boston police department told the defendant's father that they wanted to speak with the defendant.(The defendant was nineteen at that time.)The defendant's father indicated to the defendant that he should speak with the police and cooperate with them.The defendant telephoned the detectives and agreed to meet them at a duplex house that was owned by one of his...