Commonwealth v. Dacosta

• Decision Date: 19 September 2019
• Docket Number: Nos. 17-P-201 & 17-P-234,s. 17-P-201 & 17-P-234
• Citation: 132 N.E.3d 1067,96 Mass.App.Ct. 105
• Parties: COMMONWEALTH v. Hailton DACOSTA (and a companion case ).
• Court: Appeals Court of Massachusetts

96 Mass.App.Ct. 105

132 N.E.3d 1067

COMMONWEALTH

v.Hailton DACOSTA (and a companion case ¹ ).

Nos. 17-P-201 & 17-P-234

Appeals Court of Massachusetts, Bristol..

Argued April 1, 2019

Decided September 19, 2019

Jennifer H. O'Brien, Billerica, for Hailton DaCosta.

Stephen C. Nadeau, Assistant District Attorney, for the Commonwealth.

John M. Thompson (Linda J. Thompson also present) Springfield, for Antonio Rodrigues.

Present: Kinder, Singh, & McDonough, JJ.

KINDER, J.

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 degree.^{2 ,3}

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, 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.

Background. 1. The murder. We 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 (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.

The 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 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.

After 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.

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 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.

Although 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."⁴ 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, and that their testimony should not be believed.

2. Exposure to excluded evidence. A surveillance video recording from the club was played during Baptista's testimony and introduced in evidence. The audio portion of the recording revealed that Baptista asked the bartender to use her telephone before stating that "[s]omebody got shot down the street." In response to a question from the bartender, Baptista denied that he was the shooter. The judge excluded the audio portion of the recording on hearsay grounds, but expressed a willingness to revisit the issue if Baptista's earlier statement to the Hess employee (that he shot someone with a shotgun) was raised on cross-examination. The video portion of the recording was then played for the jury without the audio. Although Baptista was cross-examined about his statements to the Hess employee, the Commonwealth did not seek to introduce the audio portion of the recording.

On the second day of deliberations, the judge received a note from the jury, which stated, "Exhibit 36 Portuguese Sports Club, in the courtroom only video was presented, we have just found it to have audio. Is there any issue with us listening to the video?" The judge confirmed that exhibit 36 included the audio portion that had been excluded. The defendants immediately moved for a mistrial, which the judge denied. Although counsel for DaCosta initially suggested individual voir dire to determine what each juror heard, he agreed with the judge's decision to first ask the foreperson "how much of the audio tape ... was listened to." Before the foreperson entered the court room, the judge found "that the error was inadvertent and was not intentionally done." The foreperson explained in an unsworn statement that the jury "just heard Baptista say someone shot someone outside. That's all we heard and we stopped it because we didn't hear that in here." In response to a question from the judge, the foreperson confirmed that the jury heard nothing before or after that statement.

The judge denied the defendants' renewed motion for a mistrial, noting that she would have admitted the entire recording "under the doctrine of rehabilitation" had the Commonwealth offered the audio portion after Baptista's cross-examination. Counsel for DaCosta then requested that the judge inquire of each juror individually whether they could abide by her instruction and strike the audio recording from their minds. Ultimately, he agreed that the judge could "ask them as a group."

When the jury reentered, the judge reminded them that the audio portion of the recording had not been admitted in evidence and explained that she "had the foreman come in so that we could explore exactly how much of that audio you listened to and it seemed to be a very brief section of the audio." She then instructed them "in very, very forceful terms that you are to strike whatever you heard, whatever portion of the audio that you heard from Exhibit 36 from your minds and you are not to consider it at all in your deliberations." When the judge inquired if any juror was unable to follow those instructions, no juror responded in the affirmative.

After a recess, the defendants renewed their request for a mistrial on the ground that the judge had not conducted an individual voir dire of the jurors. The defendants declined the judge's offer to conduct individual voir dire at that point, stating, "that's just calling more attention to it at this point." The renewed motion for a mistrial was denied.

Discussion. Both defendants challenge (1) the judge's failure to conduct individual voir dire of the jurors regarding the audio recording; (2) the denial of the motion for a mistrial; (3) the sufficiency of the evidence supporting the firearm conviction, their knowledge that a coventurer...