Commonwealth v. Mendez, SJC-11869

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: BUDD, J.
• Citation: 476 Mass. 512,69 N.E.3d 968
• Parties: COMMONWEALTH v. Charles MENDEZ (and eleven companion cases ).
• Docket Number: SJC-11869,SJC-11870
• Decision Date: 22 February 2017

476 Mass. 512
69 N.E.3d 968

COMMONWEALTH
v.
Charles MENDEZ (and eleven companion cases ¹ ).

SJC-11869
SJC-11870

Supreme Judicial Court of Massachusetts, Bristol..

Argued October 11, 2016.
Decided February 22, 2017.

Cathryn A. Neaves for Charles Mendez.

Jennifer H. O'Brien, Billerica, for Tacuma Massie.

Yul-mi Cho, Assistant District Attorney, for the Commonwealth.

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

BUDD, J.

476 Mass. 513

On the evening of November 18, 2010, Edward Platts was shot and killed while sitting in his motor vehicle at a housing complex in Fall River. The defendants, Charles Mendez and Tacuma Massie, were each indicted on charges of (1) murder in the first degree² ; (2) carrying a firearm without a license; (3) carrying a loaded firearm without a license; and (4) armed robbery. They additionally were charged with assault and battery by means of a dangerous weapon and armed robbery on separate indictments in connection with a separate incident involving a different individual. The motion judge denied the defendants' motions to suppress evidence seized in connection with their warrantless stop. At the conclusion of a joint jury trial in September, 2013, the defendants were convicted of all charges.

Each defendant filed a timely notice of appeal. Both assert the following errors: the denial of his motion to suppress; the joinder at trial of the indictments for two separate incidents; and portions of the prosecutor's closing argument. Massie further argues that there was insufficient evidence to convict him of the armed robbery and felony-murder. Each defendant separately asserts additional errors pursuant to Commonwealth v. Moffett, 383 Mass. 201, 208, 418 N.E.2d 585 (1981).

We affirm the defendants' convictions and decline to exercise our extraordinary power under G. L. c. 278, § 33E.

1. Background. We summarize the facts in the light most favorable to the Commonwealth,

69 N.E.3d 972

reserving certain details for discussion of specific issues.

On the evening of November 18, 2010, just after 6 P.M. , the defendants ambushed and robbed Ryan Moitoso in a parking lot. Moitoso thought he was meeting Mendez's girl friend to sell her marijuana. The girl friend drove the defendants near the area where

476 Mass. 514

she was to meet Moitoso and let them out of her vehicle. As Moitoso spoke with the girl friend, the defendants approached him from behind. One of them hit him in the head with a hard metal object and told him to empty his pockets. Moitoso turned over some cash and marijuana, and heard a clicking noise that sounded like a gun being cocked, before being allowed to return to his vehicle. The defendants got back into the girl friend's vehicle, and she drove away. When she asked what had happened, one of the defendants replied, "That's life," and tossed a bag of marijuana into the front passenger area.

Next, the girl friend dropped the defendants off at a nearby housing complex where Massie had arranged to meet Platts (victim) on the pretext of wanting to make a marijuana purchase. The defendants intended to rob the victim of the approximately $4,000 that, Massie had learned, he was carrying that day. Prior to the meeting, a witness was parked in the housing complex and, while sitting in his vehicle, observed two men fitting the description of the defendants walk by him. The victim, who had a puppy with him, parked his vehicle behind the witness's vehicle. The witness then observed the same two men walk toward the back of his vehicle. Within seconds, the witness heard a gunshot and a vehicle engine accelerate, and then he felt the victim's vehicle hit the back of his vehicle. The witness telephoned 911 and told the dispatcher that a man had been shot. A resident of the complex looked out of her window at the sound of the gun shot to observe an individual matching Mendez's description get out of the passenger side of the victim's vehicle and quickly leave the scene carrying something clutched to his chest.

In the meantime, Mendez's girl friend received several telephone calls from Massie between 6:41 and 6:49 P.M. She returned to the complex and picked up both Massie and Mendez, pulling away quickly from the curb where they entered her vehicle. A State trooper who was in the housing complex investigating the 911 call observed the vehicle's hasty departure, and followed it. See part 2.a, infra.

When the defendants were arrested, both were carrying handguns; Massie's was loaded. Massie had more than $4,000 in cash, Mendez's clothes were stained with the victim's blood, and police found the victim's puppy in the vehicle. Police found Mendez's hat in the victim's vehicle.

The victim was shot at close range behind his right ear as he sat in his vehicle. At trial, Mendez claimed that the victim had drawn

476 Mass. 515

a gun on him and, after a struggle, he shot the victim in self-defense. He also claimed that the handgun that he had had in his possession when he was apprehended belonged to the victim.

2. Discussion. a. Motion to suppress. The defendants claim error in the denial of their motions to suppress evidence seized as a result of a warrantless stop that took place soon after the shooting. The constitutionality of the stop depends on the police officer having reasonable suspicion of criminal activity at the time it occurred. Commonwealth v. DePeiza, 449 Mass. 367, 371, 868 N.E.2d 90 (2007). Reasonable suspicion "must be grounded in ‘specific, articulable facts and reasonable inferences [drawn] therefrom’ rather than on a ‘hunch.’ " Id., quoting

69 N.E.3d 973

Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004).

When reviewing a ruling on a motion to suppress, "we accept the [motion] judge's subsidiary findings of fact absent clear error and leave to [that] judge the responsibility of determining the weight and credibility to be given oral testimony presented at the motion hearing." Commonwealth v. Wilson, 441 Mass. 390, 393, 805 N.E.2d 968 (2004). However, "[w]e review independently the application of constitutional principles to the facts found." Id.

We summarize the facts found by the motion judge. After the witness's vehicle was hit by the victim's, the witness telephoned 911 to report that a person had been shot in the head in his vehicle and was dead, and that the individuals involved had fled.³ A State police trooper with the violent fugitive apprehension section, who was dressed in plain clothes and traveling nearby in an unmarked police cruiser, heard the police transmission of this report and headed toward the housing development. Approximately two blocks from the development he observed a person moving quickly toward a parked vehicle. Without stopping, the trooper relayed the registration plate number and learned that the vehicle was registered to a woman with no criminal history. Moments later, and less than ten minutes after the initial 911 transmission, he arrived at the complex and began to patrol, looking for suspicious activity.

As the trooper drove through the housing complex, which he found to be unusually quiet, he observed an individual, later identified as Mendez, make a "beeline" to a white Honda Civic automobile that was stopped at the curb with its engine running. Mendez entered at the rear passenger side of the vehicle, which

476 Mass. 516

started to pull away quickly, before Mendez had fully entered or closed the door. Because of what appeared to the trooper to be a very unusual absence of any other people and lack of any other activity on the streets or sidewalks in the housing complex, and the vehicle's quick departure from the area, the trooper followed the vehicle while it traveled in a "serpentine route," meandering through the city streets.⁴ Meanwhile, police who had responded to the scene at the housing complex confirmed to the trooper that a man had been shot in the head and killed.

While following the vehicle, the trooper reported its registration plate number and learned that an individual associated with the address of the vehicle's owner had "lots of violence" on his record, including a

69 N.E.3d 974

firearms charge, and pending drug charges. The trooper, who could see that there were two persons seated in the back of the vehicle, radioed for backup. Approximately four miles away from the housing complex, the driver of the vehicle stopped in front of a three-family home but kept the motor running. As the trooper was without backup or a place to park, he stopped his vehicle in the middle of the street and waited. Approximately fifteen to thirty seconds later, the two defendants got out of the back seat of the vehicle at the same time and turned to face him. They were speaking to one another and both had their hands in their jacket pockets. In fear of his safety, the trooper got out of his vehicle, showed his badge and said, "Police, don't move." The two men fled in opposite directions. Mendez ran toward the...