Commonwealth v. Rakes, SJC-10046

• Decision Date: 07 April 2017
• Docket Number: SJC-10046
• Citation: 82 N.E.3d 403,478 Mass. 22
• Parties: COMMONWEALTH v. James M. RAKES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

478 Mass. 22

82 N.E.3d 403

COMMONWEALTH

v.James M. RAKES.

SJC-10046

Supreme Judicial Court of Massachusetts, Norfolk..

April 7, 2017

September 29, 2017

Alan Jay Black for the defendant.

Tracey A. Cusick, Assistant District Attorney, for the Commonwealth.

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

LENK, J.

In the summer of 1987, Jay B. Schlosser and his girl friend, Heather Buchannan, were shot and killed in the Westwood home they shared with John D. Sweeney. In 2005, the defendant was convicted by a Superior Court jury as a joint venturer on two counts of murder in the first degree on the theories of felony murder, deliberate premeditation, and extreme atrocity or cruelty. His coventurer, James P. Ridge, had been tried separately at an earlier trial and had been convicted of the victims' murders.¹

The defendant appeals from his convictions and from the subsequent denial of his motion for a new trial. He maintains that the indictments should have been dismissed because the evidence supporting them was insufficient and because the Commonwealth's presentation impaired the integrity of the grand jury by failing to disclose exculpatory evidence, introducing prior bad acts, and commenting on the defendant's invocation of his right to remain silent. As to the trial, the defendant challenges the sufficiency of the evidence and claims structural error and ineffective assistance of counsel in connection with a purported court room closure during jury selection. He also asserts error in the admission of certain hearsay evidence concerning the joint venture, in the prosecutor's closing, and in the jury instructions on reasonable doubt. He requests relief under G. L. c. 278, § 33E. We affirm the convictions and the order denying the motion for a new trial, and, after careful review of the record, decline to set aside the verdicts or reduce the degree of guilt under G. L. c. 278, § 33E.

1. Background. We recite the facts that the jury could reasonably have found, reserving certain details for later discussion. The victims, Schlosser and Buchannan, were boy friend and girl friend. Sweeney, the intended target of the armed robbery underlying this case, had recently moved in with the victims. The victims and Sweeney, along with Ridge, the defendant's coventurer, and most of those involved in the events surrounding the killings, were all part of the same social circle, and all involved in the cocaine trade. The defendant was not a member of that social circle, although Ridge knew him, and Ridge's roommate, Kevin Trundley, knew who the defendant was.

Most of the evidence presented at trial related to Ridge. Sometime around 1986, Sweeney had convinced Ridge (a long-time friend) and members of the Ridge family to invest $10,000 to $15,000 in a business to retrieve treasure from a sunken ship in the Caribbean. The business turned out to be a scam, and Ridge and his family members lost all the money that they had invested (as did Sweeney and members of his family). Sweeney pledged to get Ridge his money back.

The promised reimbursement never materialized, other than through Sweeney's efforts to pay Ridge back by giving him cocaine free of charge. Ridge was angry that Sweeney appeared to live in relative wealth while failing to pay Ridge the money he felt he was owed. Trundley, a friend of both Sweeney and Ridge, testified that Sweeney flaunted his wealth in Ridge's presence. Ridge was "very upset about the way [Sweeney] was living" in light of the slow repayment, and vowed to "get his money" back.

In the months leading up to the killings, Ridge became increasingly fixated on Sweeney. One witness testified that, at some point, Ridge was at Sweeney's mother's house when Sweeney was not present; he was shooting holes in Sweeney's shirts so that Sweeney would not have nice clothes to wear.

Ridge began frequently asking various acquaintances where Sweeney lived. At this time, Ridge was familiar with and had access to firearms, and he regularly traveled with a duffel bag containing "WD-40" metal lubricant, masks, and duct tape. On multiple occasions, Ridge was seen loading firearms in a peculiar manner: wearing gloves and spraying the bullets with WD-40. Ridge contended that this method would ensure that he left no traceable fingerprints. Roughly two months prior to the killings, Ridge threatened Sweeney directly, saying he would kill him if he did not receive his money.

Apparently in response to this threat, Sweeney left the home he had previously shared with Trundley in the Jamaica Plain section of Boston. He moved twice and ended up living in Westwood with Buchannan and Schlosser, his partners in the cocaine trade. Ridge, for his part, took Sweeney's place as Trundley's roommate.

At some point Ridge learned, through Trundley, that Sweeney had moved in with Schlosser and Buchannan. Approximately one week before the killings, Ridge, Trundley, and their respective girl friends drove past Sweeney's house. Both Trundley and his girl friend testified that when passing the home, Ridge instructed the driver to slow down. As the vehicle slowed to a "crawl," Ridge slumped down in his seat and said he did not want anyone to recognize him. He remarked that the house would be an easy hit because of its location. Later that week, Ridge told Trundley that he planned to rob Sweeney's house with a "brother and sister" but refused to identify them.² He explained further that he planned the robbery for some time between 8 and 10 P.M. on a rainy evening, when he expected the neighbors would have their windows closed and would be watching television.

On June 25, 1987, Ridge told Trundley that the robbery would take place that night. During the conversation, Ridge was carrying the duffel bag that he regularly kept with him. Trundley agreed with Ridge to provide a key to Sweeney's house, but testified at trial that he had no such key and never followed through on his promise. In addition, as Trundley feared violence if Sweeney was in the house when the robbery occurred, Trundley persuaded Sweeney—without explaining why—to leave his house and spend the evening with Trundley in Jamaica Plain. The two men were joined by three women, and together the group drank alcohol and consumed cocaine. At around 11 P.M. , Sweeney and one of the women returned briefly to Sweeney's house with plans to pick up more cocaine.³

Upon arriving, Sweeney saw the bodies of Schlosser and Buchannan, bound in duct tape, on the couch. The whole house looked as if it had been ransacked. An antique rifle belonging to Schlosser lay in the kitchen, out of its normal storage place, and there was a hole in the wall that, Sweeney testified, had not been there earlier in the day. Sweeney left and immediately returned to Jamaica Plain to meet Trundley. He did not tell the woman with him what he had seen. Instead, on the drive back, Sweeney telephoned Trundley and told him that the three women would need to leave as soon as Sweeney arrived. They did so. Sweeney then frisked Trundley, suspicious he may have been involved in the killings. Finding no weapons, and apparently thus satisfied, he then told Trundley what he had seen. Sweeney next telephoned a Federal Bureau of Investigation (FBI) agent he knew. Early in the morning of June 26, Sweeney, Trundley, and the FBI agent met and drove together to the Westwood police station where they reported the victims' deaths. Police tested Sweeney's hands for blood and found none. Officers were dispatched to the house soon thereafter and found the victims' bodies as described.

The police investigation revealed that the victims died as a result of gunshot wounds

. Buchannan was shot twice, including once through the head, while Schlosser was shot once, with the single bullet passing through his wrist and then entering his skull. As mentioned, both victims were bound with duct tape around the ankles, knees, and hands; their eyes, and Buchannan's mouth, were also covered. Schlosser's mouth was not taped, but there appeared to be duct tape residue around it, and there was duct tape crumpled on the nearby coffee table. Two spent .38 caliber cartridges and three shell casings were found at the scene. There were no eyewitnesses to the killings, the weapon used was never found, and there was no physical evidence linking either Ridge or the defendant to the killings. Police searched, but were not able to find any usable fingerprints. There is no indication that police tested for deoxyribonucleic acid (DNA); that method of identification was in its infancy at the time.

Later that same day, Trundley and Sweeney drove to Cape Cod. Sweeney called Ridge and asked him to join them, and Ridge was driven down by Trundley's girl friend. On the drive, she saw Ridge with a significant amount of cocaine despite the fact that she knew him to be "broke" and unable to afford it at the time. In addition, Ridge mentioned to her that he had to see Trundley because "things didn't go right." The evening that Ridge arrived, Trundley, who had expected only a robbery, confronted him and asked, "Why did you kill those people?" Ridge replied, "because she recognized me," and warned Trundley to "keep [his] mouth shut." The next day, Sweeney and Trundley went to retrieve Sweeney's vehicle, which he had allowed Ridge to use, and found Ridge cleaning it out. Sweeney noticed a loan coupon book in the vehicle, which he was certain he had left at home on June 25. He abruptly took his vehicle back, and immediately drove away alone, leaving Ridge and Trundley behind.

Trundley testified that, after learning of Ridge's involvement with the killings, he "stayed away from him as much as [Trundley] could," but continued to speak to him on occasion. A few weeks after their initial conversation, Ridge gave Trundley a more detailed account of the robbery and the ensuing killings. Ridge explained that when the robbers entered the home, Schlosser grabbed an old rifle, but that "they beat him up, took the rifle...