At trial, the Government presented theories of principal and joint venture liability to the jury. Commonwealth v. Miranda, 934 N.E.2d 222, 224 n.1 (Mass. 2010) ("Miranda I"). Petitioner asserted a defense of misidentification. Id. at 227.
A jury convicted the defendant of murder in the second degree, G.L. c. 265, § 1, and two firearm violations, G.L. c. 269, §§ 10( a ) and 12E. He argues on appeal (a) a violation of Commonwealth v. Miranda, 458 Mass. 100, 105–113, 934 N.E.2d 222 (2010), cert. denied, ––– U.S. ––––, 132 S.Ct. 548, 181 L.Ed.2d 396 (2011), concerning a cash reward to a witness; (b) improper denial of his motion to suppress statements made to the police; and (c) insufficient instruction with respect to “honest but mistaken identification.” We affirm.
The narrow question before us is whether the defendant was entitled to a specific jury instruction that testimony from a witness who is paid by the government in return for her participation in the case should be subjected to a higher degree of scrutiny than testimony from other witnesses. We begin by reviewing two of the cases on which the defendant relies: Commonwealth v. Luna, 410 Mass. 131, 571 N.E.2d 603 (1991), and Commonwealth v. Miranda, 458 Mass. 100, 934 N.E.2d 222 (2010), cert. denied, ––– U.S. ––––, 132 S.Ct. 548, 181 L.Ed.2d 396 (2011). Miranda was issued after the trial in this case, so the trial judge did not have the benefit of its teachings.
Wayne Miranda was convicted of murder in the second degree and other offenses in 2008, and this court affirmed the convictions. Commonwealth v. Miranda, 458 Mass. 100, 934 N.E.2d 222 (2010), cert. denied, ––– U.S. ––––, 132 S.Ct. 548, 181 L.Ed.2d 396 (2011). Miranda has filed a petition in the Federal District Court for a writ of habeas corpus.
"[A] prosecutor shifts the burden of proof when, for example, he or she calls the jury's attention to the defendant's failure to call a witness or witnesses, or when the prosecutor offers ‘direct comment on a defendant's failure to contradict testimony.’ " Commonwealth v. Tu Trinh, 458 Mass. 776, 787, 940 N.E.2d 871 (2011), quoting Commonwealth v. Miranda, 458 Mass. 100, 117, 934 N.E.2d 222 (2010), cert. denied, 565 U.S. 1013, 132 S.Ct. 548, 181 L.Ed.2d 396 (2011). In such cases, the prosecution lessens the Commonwealth's burden of proof by signaling to the jury that the defendant has an affirmative duty to present evidence of his or her innocence.
In its opinion, the court observed that although the Commonwealth's case was circumstantial, such evidence can be "sufficient to establish guilt beyond a reasonable doubt." Id. at 388 (quoting Commonwealth v. Miranda, 458 Mass. 100, 934 N.E.2d 222, 233 (2010) ). The court went on to conclude that such evidence was sufficient in the petitioner's case.
In July 2008, Petitioner Wayne Miranda was convicted of second-degree murder, assault and battery with a dangerous weapon, and carrying an unlicensed firearm. Commonwealth v. Miranda, 934 N.E.2d 222, 224 (Mass. 2010). At trial, the Government presented theories of principal and joint venture liability to the jury, which returned a general verdict finding Petitioner guilty of second-degree murder.
In Commonwealth v. Green, 302 Mass. 547, 555, 20 N.E.2d 417 (1939), we held that withdrawal requires "at least an appreciable interval between the alleged termination and [the commission of the crime], a detachment from the enterprise before the [crime] has become so probable that it cannot reasonably be stayed, and such notice or definite act of detachment that other principals in the attempted crime have opportunity also to abandon it." See Commonwealth v. Miranda, 458 Mass. 100, 118, 934 N.E.2d 222 (2010), cert. denied, 565 U.S. 1013, 132 S.Ct. 548, 181 L.Ed.2d 396 (2011), S.C., 474 Mass. 1008, 49 N.E.3d 675 (2016), quoting Commonwealth v. Cook, 419 Mass. 192, 202, 644 N.E.2d 203 (1994) (same). See also Model Jury Instructions on Homicide 18-19 (2018).
Even so, "circumstantial evidence is sufficient to establish guilt beyond a reasonable doubt." Commonwealth v. Miranda, 458 Mass. 100, 113, 934 N.E.2d 222 (2010), cert. denied, 565 U.S. 1013, 132 S.Ct. 548, 181 L.Ed.2d 396 (2011), S.C., 474 Mass. 1008, 49 N.E.3d 675 (2016). Inferences drawn from circumstantial evidence "need only be reasonable and possible; [they] need not be necessary or inescapable."
"[C]ircumstantial evidence is sufficient to establish guilt beyond a reasonable doubt[, and t]o the extent that conflicting inferences may be drawn from the evidence, it is for the jury to decide which version to credit" (citation omitted). Commonwealth v. Miranda , 458 Mass. 100, 113, 934 N.E.2d 222 (2010), cert. denied, 565 U.S. 1013, 132 S.Ct. 548, 181 L.Ed.2d 396 (2011), S .C ., 474 Mass. 1008, 49 N.E.3d 675 (2016). From the evidence, a reasonable jury could have found that the defendant was motivated by anger at the ongoing feud between the Woodward Avenue gang and the Wendover Street gang, especially after the altercation at the gasoline station between the defendant, Lopes, and Montrond, and members of the Wendover Street gang, which occurred two months prior to the murder, resulted in the injury to the defendant and Lopes. The jury also could have found that the defendant's threat, "You don't belong here," was evidence of his motivation to kill because the victim, an associate of the Wendover Street gang, was present in Woodward Avenue gang "territory."