Commonwealth v. Silva
| Decision Date | 11 June 2015 |
| Docket Number | SJC–11096. |
| Citation | 31 N.E.3d 1092,471 Mass. 610 |
| Parties | COMMONWEALTH v. Robert SILVA. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Chauncey B. Wood, Boston, for the defendant.
Mary E. Lee, Assistant District Attorney, for the Commonwealth.
Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, & HINES, JJ.
BOTSFORD
, J.
The defendant, Robert Silva, stands convicted of murder in the first degree on theories of extreme atrocity or cruelty and felony-murder, and also of armed robbery.1 He appeals the convictions, arguing that (1) his motion to suppress evidence of his sneakers and evidence derived from blood found on his sneakers was improperly denied; (2) the trial judge erred in instructing the jury on the theory of joint venture liability where the Commonwealth's exclusive argument was that the defendant was guilty as a principal; (3) the judge also erred in denying the defendant's request for an instruction on involuntary manslaughter; and (4) the prosecutor improperly shifted the burden of proof in her closing argument. Finally, the defendant argues that he is entitled to relief under G.L. c. 278, § 33E
. We affirm the defendant's convictions.
Background. 1. Facts. We summarize the facts that the jury could have found at trial.2 During the afternoon of June 9, 2004, the defendant and Eric Pimental, both eighteen years old, were walking together on a path in the woods in Wareham. They encountered Thomas Loftus, the victim, who was intoxicated,3 and they agreed that they would “roll” him.4 After Pimental knocked the victim down to the ground, both Pimental and the defendant began to kick the victim, and the defendant jumped on the victim's chest. The defendant later stated to David Belmore, a fellow inmate of the Plymouth County correctional facility (PCCF), “You should have seen [the victim's] eyes bug out when I jumped on his chest,” and that he and Pimental knew the victim
was dead when his eyes ceased to move.5 The two men moved the victim's body off the path, and the defendant and Pimental took the victim's backpack, his money, and other items the victim was carrying on his person. The defendant ended up carrying Pimental's camouflage-colored backpack with the victim's black backpack inside of it; Pimental ended up with the victim's money. Before leaving the woods, the defendant and Pimental encountered Kathy Browne, who was walking on the same path in the woods with her young son. They spoke briefly together, and Browne noticed blood on Pimental's legs. The defendant and Pimental then departed from the woods, separated, and the defendant went downtown, where he drank whiskey.
Some hours later, around 6:30 p.m. , Thomas Joyce, the chief of police of Wareham, who was off duty, observed the defendant trying to open locked vehicles on a street in Onset, a section of Wareham. Based on his observations and conversation with the defendant, Joyce decided to place the defendant in protective custody because of the level of the defendant's intoxication.6 Joyce opened the camouflage-colored backpack the defendant was carrying to check for possible weapons, and noted that there was another backpack inside.7 The defendant and the backpacks were transported to the Wareham police station, and the police took custody of the backpacks. Because the police determined that the defendant had at least one outstanding warrant, he was not released at the end of the protective custody period, but taken
to the Wareham Division of the District Court Department (Wareham District Court) the following morning, June 10, 2004. Following his court appearance, the defendant remained in custody pursuant to the outstanding warrant, and was transported to the PCCF.
During that same morning, June 10, 2004, the victim's body was found off the path in the woods where the defendant and Pimental had encountered Browne the previous afternoon. In the early morning hours of the following day, June 11, based on information supplied by his then girl friend, Pimental was arrested and charged with the victim's murder. Later that day, the defendant's sneakers were seized from the PCCF pursuant to a search warrant. DNA testing performed on a sample taken from a bloodstain on one of the defendant's sneakers revealed that the sample matched the victim's blood; the likelihood that a random individual's DNA would match the sample was one in ninety-five quintillion. The bloodstain on the defendant's other sneaker was not sufficient for DNA testing.
The cause of the victim's death was blunt force trauma to the chest. His sternum was broken
, and his heart lacerated by the sternum bone. His ribs on both sides of his chest were broken, and he would have been alive when that occurred. His left lung was torn. The injuries to his chest, heart, and lung were consistent with being stomped. The victim's jaw was fractured, and he also had suffered blunt force trauma to the head.
2. Procedural history. The defendant was indicted on charges of murder and armed robbery in 2007. He filed five motions to suppress evidence.8 The motions were heard and decided by a judge in the Superior Court (motion judge) in the summer of 2009, after an evidentiary hearing. The motion judge allowed the motion to suppress statements (fourth motion to suppress), and allowed in part the first motion to suppress evidence of the search of the backpacks conducted by the police chief and an officer of the Wareham police department, respectively, on June 9, 2004. The judge otherwise denied the first motion to suppress, and also denied the remaining motions (second, third, and fifth motions to
suppress).9 After the defendant's first trial ended in a mistrial when the jury could not agree on verdicts, the defendant was retried in January of 2011 before a judge other than the motion judge (trial judge). The jury found the defendant guilty of murder in the first degree on the theories of extreme atrocity or cruelty and felony-murder, and also found him guilty of armed robbery. He was sentenced to life imprisonment without parole on the murder conviction and a concurrent sentence of from four to five years on the armed robbery conviction.10 The defendant filed a motion for a new trial that he later withdrew.
Discussion. 1. Evidence of the defendant's sneakers. On appeal, the defendant asserts error in the motion judge's denial of his second motion to suppress, which challenged the constitutionality of the search and seizure of the defendant's sneakers from the PCCF on June 11, 2004. As indicated, the motion judge held an evidentiary hearing on the defendant's suppression motions as a group in which evidence was presented pertaining to essentially all of the motions. In considering the defendant's arguments here concerning the second motion, we begin by summarizing the judge's pertinent findings and rulings.11
The judge found that the defendant was taken into protective custody by the Wareham police chief on the evening of June 9, 2004, taken to the Wareham District Court the following morning, and then ordered held by a District Court judge on an outstanding warrant and transported to the PCCF. After the victim's body was found on June 10, the medical examiner determined the same day that the death was a homicide, and had occurred about twenty-four hours earlier—around 3:15 p.m. on the afternoon of June 9. Police investigation into the homicide led them to believe that Pimental and the defendant were involved in the crime, and Pimental was interviewed by the police on June 11.12 Pimental ultimately told the police that both he and the defendant had
fought with the victim and that the defendant had hit and kicked the victim, and also described the clothing the defendant had been wearing. One of the State police officers interviewing Pimental, State police Trooper Robert Dateo, believed the defendant was still wearing the same clothes when he was transported to the PCCF the previous day, June 10. Based on the information supplied by Pimental, the trooper applied for a search warrant to obtain the defendant's clothes from the PCCF for forensic testing purposes. The warrant issued at 6:15 a.m. on June 11. Captain Scott Berna of the State police, who was present when the warrant issued, then telephoned the PCCF and informed Captain Scott Petersen of the Plymouth County sheriff's department that a warrant to search for and seize the defendant's property had been secured and police would be coming to the facility to execute it. Petersen then notified the PCCF property department to get the defendant's property together, and correctional officers went to the unit where the defendant was housed and secured his sneakers.13
At the PCCF, a detainee is issued prison clothing and his own clothing is put into a property bag and stored until it is either picked up by the detainee's family or mailed elsewhere at the detainee's expense. The clothing must be removed from the PCCF within thirty days of the detainee's arrival. A detainee, however, may be, and often is, permitted to keep his or her footwear, and specifically sneakers, because the prison-issue sneakers are not of good quality and would not fit as well. But keeping the sneakers is a privilege, and they may be taken from a detainee at any time.14 When police seize a detainee's property from the PCCF pursuant to a search warrant, they generally do not give the detainee notice or provide him with a copy of the warrant unless
it is a warrant to take a buccal swab.15
In this case, after the search warrant issued, Berna drove to the PCCF to retrieve the defendant's property at some point during the morning of June 11, 2004. He met a correction officer in the facility's lobby; the officer gave him the bag containing the defendant's clothes, including the defendant's sneakers, and Berna gave the officer a copy of the search warrant at the same time. The copy ultimately was received by the “legal department.” The defendant was not present...
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