Commonwealth v. Tavares

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation144 N.E.3d 268,484 Mass. 650
Docket NumberSJC-12631
Parties COMMONWEALTH v. Daniel TAVARES.
Decision Date06 May 2020

Theodore F. Riordan (Deborah Bates Riordan also present), Quincy, for the defendant.

Mary E. Lee, Assistant District Attorney, for the Commonwealth.

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

LOWY, J.

In December 2015, a jury convicted the defendant, Daniel Tavares, of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty, for the 1988 stabbing death of Gayle Botelho. The judge sentenced the defendant to life in prison.1 On appeal, the defendant seeks reversal of his conviction, arguing that the trial judge erred by denying (1) his requests for a jury instruction pursuant to Commonwealth v. Croft, 345 Mass. 143, 145, 186 N.E.2d 468 (1962) ; and (2) his motions for a required finding of not guilty because the evidence equally supported two inconsistent propositions, as prohibited by Croft. The defendant also requests that we exercise our power pursuant to G. L. c. 278, § 33E, to reduce his conviction to manslaughter. Finding neither reversible error nor reason to exercise our authority under § 33E, we affirm.

Background. We recite the evidence in the light most favorable to the Commonwealth, reserving certain details for later discussion. See Commonwealth v. Rodriguez, 456 Mass. 578, 579, 925 N.E.2d 21 (2010). The victim went missing on or about October 27, 1988. At the time of her disappearance, the victim lived on Prospect Street in Fall River with her boyfriend, Carlos DaPonte, and his brother, Gil DaPonte.2 The defendant lived across the street with his mother, and as relevant here, his mother's friend, Richard Pires. Neither the defendant nor anybody else was arrested in connection with the victim's disappearance, until the defendant was charged in 2012.

1. The defendant's first version of events. In 1991, the defendant killed his mother and pleaded guilty to manslaughter. He was sentenced to from seventeen to twenty years in State prison. In September 2000, while incarcerated, the defendant wrote to a Bristol County assistant district attorney, claiming to know the location of a murder victim's body, which he would disclose, along with other relevant information, in exchange for a reduced sentence.3 During a series of interviews that took place over the subsequent months, the defendant told Detective John McDonald the following details about the night the victim was murdered: the victim, Carlos, Gil, and their friend, Raymond Paiva, were all at the defendant's house with the defendant. The defendant gave Carlos some cocaine to sell and Carlos left. The defendant then stepped outside to speak to his girlfriend, Michelle Cardoza, for about ten to fifteen minutes. When the defendant returned to his bedroom, he saw Gil holding a knife and the victim on the floor with stab wounds

to her back. The defendant further stated that he was not present during the stabbing.

When the defendant asked what had happened, Gil confessed to stabbing the victim, and the defendant announced he was going to call for help. Gil then pulled out a handgun, put it to the defendant's head, and fired a round, which grazed the defendant's forehead. The defendant then said he had to leave to pick up Cardoza, and he instructed Gil and Paiva to remove the victim's body. When the defendant returned approximately twenty minutes later, he saw Gil and Paiva carrying the victim's body, wrapped in a blanket, down the stairs and into the back yard.4 Later, Gil and Paiva pointed to an area of the back yard and told the defendant that that was where they had buried the victim's body. The defendant had been clearing that area for a tomato garden, and he suspected that that was where Gil and Paiva buried the body.5

2. The initial investigation. After two interviews with the defendant, in October 2000, the police went to the defendant's former house on June Street. In the defendant's bedroom, they found a bloodstained section of floor. In the back yard, the police recovered a human skeleton and positively identified the remains as those of the victim. The autopsy concluded that the cause of death was homicidal violence including stabbing to the victim's back.

Shortly thereafter, Lori Moniz, the defendant's former girlfriend, saw a news report that a body had been discovered in the defendant's back yard. She contacted the police. At a subsequent meeting, she reported that, on an evening in late October 1988, the defendant had telephoned and told her to come to his house because he wanted to show her something. When Moniz arrived, the defendant answered the door, appearing nervous and excited. Moniz followed the defendant upstairs to his bedroom and, as she approached, she saw the defendant on his hands and knees scrubbing what appeared to be a large pool of blood from the rug. Upon seeing this, Moniz rushed down the stairs to leave. The defendant ran after her, explaining that the blood was fake and a joke for Halloween.

3. The defendant's second version of events. In 2002, the defendant changed his story: The defendant stated that he witnessed Gil stab and murder the victim and that Cardoza was not there that night. In 2002, Cardoza also told Detective McDonald that, at the defendant's request, she had lied about being with the defendant on the night of the murder. The Commonwealth did not charge the defendant with the victim's murder at this point.

4. Further investigation. In 2007, the defendant completed his sentence for his mother's homicide, and within days of his release from prison, he moved to the State of Washington. Shortly thereafter, the defendant killed two people. While incarcerated in Washington, the defendant learned of a book that discussed the victim's murder, including the defendant's cooperation with the police. In 2012, another individual incarcerated in the same Washington prison as the defendant told the Fall River police department that he had discovered an open letter, written on the cover of a book in the prison library, in which the author, later confirmed to be the defendant, refuted the notion that the defendant had cooperated with police and, instead, asserted that he was the only suspect in the victim's murder case, not a "rat."

5. The defendant's 2012 confession. In November 2012, Detective McDonald traveled to Washington to meet with the defendant, at which point, the defendant changed his story again. The defendant stated that he alone murdered the victim (2012 confession). In this version, the defendant was angry with the victim, the DaPontes, and Paiva for stealing cocaine from him, and he planned to kill all of them in retaliation for the theft. On the day of the murder, he walked across the street to the victim's house, and the victim answered the door. The defendant asked if Carlos was home, but he was not. The defendant told the victim that he knew all four of them had stolen from him and that he wanted them to start selling cocaine for him to repay their debt. The defendant then invited the victim across the street to retrieve some cocaine from his house. Upon entering his bedroom, the defendant laid out a line of cocaine for the victim. While the victim bent over to ingest the line, the defendant took a handgun and tried to shoot her, but the slide on the gun jammed. The defendant then reached for a knife that was on his bureau and stabbed the victim seven or eight times. The victim fell, and her blood soaked the floor. The defendant then moved the victim's body to the back yard, removed the victim's clothes, and buried the victim's body, face down, in the back yard. The defendant told Detective McDonald that he would not have confessed if not for the book that had been written, because he refused to be known as a "rat."6

In February 2013, the defendant confessed three more times in writing to (1) his former roommate, Richard Pires; (2) Detective McDonald;7 and (3) his former false alibi witness,8 Cardoza.

A grand jury indicted the defendant for the victim's murder in 2013, and the jury trial began on November 16, 2015. At trial, the defendant argued that he gave a false confession to avoid being labeled a "rat" in prison. He called an expert witness who testified to the dangers of being considered a "rat" within the prison system. The jury convicted the defendant.

Discussion. 1. Jury instruction. On appeal, the defendant argues the judge erred in denying the defendant's requests for a jury instruction pursuant to Croft, 345 Mass. at 145, 186 N.E.2d 468.9 Because the defendant preserved this issue at trial, we review for prejudicial error. See Commonwealth v. Cruz, 445 Mass. 589, 591, 839 N.E.2d 324 (2005).

We have long upheld the principle articulated in Croft that "[w]hen the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof." Croft, 345 Mass. at 145, 186 N.E.2d 468, quoting Commonwealth v. O'Brien, 305 Mass. 393, 400, 26 N.E.2d 235 (1940). See Commonwealth v. Kelly, 470 Mass. 682, 693-694, 25 N.E.3d 288 (2015). Our decision in Croft does not provide for a jury instruction, and we have never interpreted it as such.10 Indeed, we previously held that "a reference to the consequences of an even balance in the evidence preferably should not be included in a charge on reasonable doubt," Commonwealth v. Hunt, 462 Mass. 807, 825-826, 971 N.E.2d 768 (2012), quoting Commonwealth v. Beverly, 389 Mass. 866, 872-873, 452 N.E.2d 1112 (1983), because such an instruction may lead the jury to improperly infer that if the balance is weighted even slightly in favor of the defendant's guilt, the jury would be required to find the defendant guilty, see Commonwealth v. Saladin, 73 Mass. App. Ct. 416, 419, 898 N.E.2d 514 (2008).

Instead, the principle articulated in Croft provides a standard for judges...

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