Commonwealth v. Vacher
| Citation | 469 Mass. 425,14 N.E.3d 264 |
| Decision Date | 19 August 2014 |
| Docket Number | SJC–11220. |
| Parties | COMMONWEALTH v. Robert B. VACHER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
James L. Sultan (Kerry Haberlin with him), Boston, for the defendant.
Julia K. Holler, Assistant District Attorney, for the Commonwealth.
Present: IRELAND, C.J., SPINA, GANTS, DUFFLY, & LENK, JJ.1
LENK
, J.
A Superior Court jury found the defendant guilty of murder in the first degree, on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder.2 On appeal, the defendant asks us to recognize for the first time the concept of “target standing,” and to declare the witness immunity statute, G.L. c. 233, § 20C
, unconstitutional. He argues that, in litigating his own motions to suppress, he should have been afforded target standing to challenge the violation of his alleged coventurers' constitutional rights. He further argues that the witness immunity statute, G.L. c. 233, § 20C, is facially unconstitutional, in that it operates to benefit only the Commonwealth and unfairly skews the adversary system, and unconstitutional as applied to him, in that the Commonwealth's reliance on a “spate” of immunized witnesses deprived him of a fair trial.
The defendant also contends that the trial judge's failure to exclude identification testimony, and his failure to instruct the jury pursuant to Commonwealth v. DiGiambattista, 442 Mass. 423, 447–448, 813 N.E.2d 516 (2004)
, concerning the partial recording of the defendant's interrogation by police, were erroneous and require a new trial. Concluding that there was no prejudicial error, we
affirm the defendant's convictions. After a review of the entire record pursuant to G.L. c. 278, § 33E
, we discern no reason to exercise our power to reduce the defendant's conviction of murder to a lesser degree of guilt or to order a new trial.
1. Introduction. On December 16, 2008, the victim's body was found burning in a pit on Jennifer Lane in Hyannis. The victim, sixteen year old Jordan Mendes, had been stabbed in the neck and face twenty-seven times, and had suffered a gunshot wound
to the chest.3 He was last seen alive shortly after 2 P.M., the end of the school day, on December 15, 2008.4 Forty-five witnesses testified at the defendant's trial, five of them pursuant to a grant of immunity. The prosecutor elicited testimony that the victim, his half-brother Charlie M.5 (then aged thirteen), and the defendant (then aged twenty), were involved in the sale of drugs, particularly the prescription painkiller Percocet. The Commonwealth's theory at trial was that the defendant, as part of a joint venture with Charlie and John R., also thirteen at that time, killed the victim in a scheme to steal drugs and cash from him. The defense theory was that Charlie, the picked-on younger brother of the victim, was the true culprit, who retaliated against the victim's bullying by killing him, without the defendant's involvement.
Before the defendant was questioned in connection with the victim's death, police interviewed both Charlie and John on December 18, 2008. Charlie and John made statements inculpating the defendant, and based on those statements, police issued a “be on the lookout” alert for the defendant. Police stopped the defendant in his vehicle later that night and brought him to Barnstable police headquarters, where he was interrogated.
Information learned in the course of John's interview also was set forth in the affidavit supporting the application for a warrant to search the defendant's vehicle, which was allowed. In proceedings against Charlie and John, however, a Juvenile Court judge suppressed the entirety of Charlie's December 18, 2008, statement to police, and most of John's, due to the officers' failure
to follow proper procedures for interrogating juveniles under the age of fourteen. Before trial, the defendant unsuccessfully sought to have suppressed the evidence seized pursuant to the search of his vehicle. He argued, inter alia, that information in the search warrant affidavit that had been obtained from John in contravention of John's constitutional rights should have been redacted, and that what would have remained following such redaction was insufficient to establish probable cause. A Superior Court judge disagreed, ruling that there was no need to suppress evidence against the defendant obtained as a result of a violation of a third party's constitutional rights, and that, in any event, even if the affidavit were redacted as the defendant wanted, there would still have been probable cause for the search.
2. Facts. Based on the evidence at trial, the jury could have found the following. The victim, a sophomore at Barnstable High School, lived with his grandmother in an apartment in Hyannis. He had his own bedroom, which he always locked when he was not at home; even his grandmother could not access his bedroom without the key. He also had installed locks on his closet doors. On his belt loop, he carried a key chain that included a key to his grandmother's apartment, a key to a safe, and a key bearing the Boston Red Sox insignia. The victim's room was very neat, and he swept the floor in a particular manner so that he would be able to see footprints if someone had been in his room.
The victim spent a great deal of time with his half-brother Charlie and was often at Charlie's mother's house on Arrowhead Drive in Hyannis (Arrowhead Drive house). The two were both involved in selling drugs, particularly Percocet
. The victim often carried large amounts of cash, and at least once was seen with up to $10,000 on his person, which he organized into stacks of $1,000, folding each stack in half and wrapping it with a rubber band.
a. Monday, December 15, 2008. After school ended at 2 P.M. on December 15, 2008, a classmate dropped the victim off on Arrowhead Drive. Charlie, John, and the defendant also had been dropped off at the Arrowhead Drive house around the same time by Diana R.,6 one of the defendant's classmates at Cape Cod Community College. Charlie telephoned Louis L.,7 a student at Barnstable High School, expressing interest in purchasing a black
Nissan Maxima that Louis was selling for $11,000. Louis and his girl friend picked up Charlie and the defendant in the Nissan and drove to the high school parking lot. At the school, Charlie gave Louis $11,000 in cash, which was organized into piles of $1,000, with each stack folded in half and wrapped in a rubber band; a photograph of Charlie holding the cash, taken by Louis, was admitted in evidence at trial. The defendant showed Louis his driver's license, and Louis agreed to let the defendant test drive the vehicle with Charlie.
At some point after 4 P.M., Charlie's grandmother, who was also the victim's grandmother, saw Charlie enter her locked apartment through the front door, using the victim's keys.8 Charlie had never before used the victim's keys to enter the apartment. She asked Charlie if he would buy her some ginger ale, because she was not feeling well. After a stop at a convenience store, Charlie returned with the ginger ale to his grandmother's apartment, in a black vehicle, between 7 and 9 P.M.9 Charlie's grandmother asked him if he had a cigarette, and he gave her a filtered menthol cigarette.
Later that evening, Charlie dropped by the house of the victim's godmother in Hyannis. The victim kept some of his belongings in the closet of the upstairs bathroom there, including a safe box containing money. Although another bathroom was available, Charlie waited for someone else to finish showering in order to use the upstairs bathroom in particular. After making use of that bathroom, he left.
At approximately 8:00 P.M., the defendant, Charlie, and John met Louis at a pharmacy in Hyannis to return the Nissan, which the defendant had been driving, and Louis gave them back the $11,000 in cash. As they were walking away, Louis called after them that they had left their keys on a key chain in the ignition; he testified that he recognized the keys as belonging to the victim.
and John were. When Diana arrived at the house, she saw that the three of them had a “big bag” containing, in her estimation, approximately one thousand Percocet
pills; she testified that she never before had seen them with such a large supply. The four of them then spent time at another house on Elm Street before returning to the Arrowhead Drive house for the night. Diana initially did not want to spend the night at the Arrowhead Drive house, preferring instead to spend time with the victim, with whom she was “hooking up,” but the three males repeatedly assured her that the victim would be coming to the house. While she waited for the victim to arrive, Diana consumed Percocet and Oxycontin with the others, and eventually agreed to spend the night.10 Diana telephoned the victim throughout the night, but was unable to reach him. The victim never showed up at the Arrowhead Drive house.
b. Tuesday, December 16, 2008. In the morning, Charlie asked Diana to drive him to his grandmother's apartment, because he was worried that the victim had not come to the Arrowhead Drive house the night before. Diana drove Charlie, John, and the defendant to the apartment. Once there, Charlie went into the victim's bedroom and then left the apartment.
Charlie then said that he “wanted to get a car,” so Diana drove them to a dealership in Hyannis.11 Charlie and the defendant spoke with a salesman about purchasing a silver 2000 BMW and negotiated a sale price for the vehicle, which had a sticker price of $10,995.12 Charlie presented $7,500 in cash and the defendant supplied the difference, grouped in $1,000 increments and wrapped in rubber bands. The vehicle was registered in the defendant's name.
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