We clarified in Commonwealth v. Hart, 455 Mass. 230, 244 n.13, 914 N.E.2d 904 (2009), that our reasoning in Grand Jury Subpoena applies equally to a trial subpoena. In Commonwealth v. Gomes, 459 Mass. 194, 206, 944 N.E.2d 1007 (2011), we rejected the argument that such recordings could be used "to further the legitimate penological and security interests of the sheriff" only, and "not for the prosecutorial purposes of the district attorney." Id. at 206–207, 944 N.E.2d 1007 (dissemination of detainee's recorded telephone conversation did not violate detainee's constitutional rights).
Id. "[W]hat is seen on the view may be used by the jury in reaching their verdict," Commonwealth v. Corliss, 23 N.E.3d 92, 97 (Mass. 2015) (quoting Commonwealth v. Gomes, 944 N.E.2d 1007, 1012 (Mass. 2011)), and, because there was evidence presented that the petitioner was both in Boston and Brockton on the day of the murder, the jury could properly have used its understanding of such a trip to evaluate the Commonwealth's timeline of events. Next, the petitioner argues that the two instances in which the SJC concluded that the prosecutor's comments were improper but also that those statements could not have substantially swayed the jury were in fact highly prejudicial and resulted in a violation of his due process rights.
First, it noted that even if exclusion from a jury view were capable of constituting a due process violation, Hyatt had failed to make the required showing that that violation had caused him “substantial harm.” Id. (citing Commonwealth v. Gomes, 459 Mass. 194, 199, 944 N.E.2d 1007 (2011)). Second, the Appeals Court said without further explanation that it was unpersuaded by Hyatt's attempt to analogize Justice Brady's refusal to allow him to attend the view to a judge's permitting a defendant to be seen by the jury in prison garb or shackles, a practice that (according to a distinct line of precedent) requires a judge to make particularized findings.
See Rutherford, 476 Mass. at 646, 71 N.E.3d 481 (improper to ask jury to imagine victim's final thoughts). The Commonwealth argues that, by telling the jury that they walked Lord's last walk and stood in the spot where she was killed, the prosecutor properly referenced the view, see Commonwealth v. Gomes, 459 Mass. 194, 201, 944 N.E.2d 1007 (2011), and reminded the jury of the sequence of events leading to her death. Even if the statements were close to the line or if the jury did not understand them as a reference to the view, they did not create a substantial likelihood of a miscarriage of justice for the reasons discussed supra.
We have held that a governmental action within a prison does not constitute a search when two conditions are present: the prison policy at issue furthers legitimate penological security interests, and prisoners are warned of the policy. See Commonwealth v. Gomes, 459 Mass. 194, 206–207, 944 N.E.2d 1007 (2011), citing Matter of a Grand Jury Subpoena, 454 Mass. at 687-689 & n.6, 912 N.E.2d 970. See also Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (no Fourth Amendment privacy rights in prison cell).
Where there is no error, this court need not reach the question of prejudice. See, e.g., Commonwealth v. Gomes, 459 Mass. 194, 207, 944 N.E.2d 1007 (2011) (analysis stops at determination there was no error). By way of illustration, the defendant suggested the following language:
As discussed supra, the Commonwealth provided sufficient evidence for the jury to find beyond a reasonable doubt that the defendant shot the victim. "[T]he Commonwealth does not have the burden of proving no one else may have committed the murder," but rather its "burden is to prove beyond a reasonable doubt that the defendant committed the murder" -- a burden that it satisfied. Commonwealth v. Gomes, 459 Mass. 194, 208, 944 N.E.2d 1007 (2011). See Commonwealth v. Hoose, 467 Mass. 395, 412, 5 N.E.3d 843 (2014) ("Commonwealth does not have the burden to prove beyond a reasonable doubt that some third party is not guilty of the charged crime").
The prosecutor properly encouraged the jury to use their observations from the view to evaluate the evidence and aid in reaching their verdict. See Commonwealth v. Corliss , 470 Mass. 443, 448, 23 N.E.3d 92 (2015), quoting Commonwealth v. Gomes , 459 Mass. 194, 199, 944 N.E.2d 1007 (2011) ("[a]lthough what is seen on the view may be used by the jury in reaching their verdict, in a ‘strict and narrow sense a view may be thought not to be evidence’ "). Similarly, the prosecutor's forceful rhetoric was based on the evidence without focusing on any unnecessarily emotional or inflammatory aspects of the evidence.
Moreover, they could have “believe [d] all, some, or none of the testimony of any witness,” including the defendant. See Commonwealth v. Ortiz, 470 Mass. 163, 167, 20 N.E.3d 251 (2014), quoting Commonwealth v. Gomes, 459 Mass. 194, 203, 944 N.E.2d 1007 (2011). Under these circumstances, the likelihood that “[a] defense could be established” by the defendant, see Lombardi, 378 Mass. at 616, 393 N.E.2d 346, turned on whether the jury would believe the defendant's testimony that he had not asked Foxworth to kill the victim.
Morganti, 455 Mass. at 402–403, 917 N.E.2d 191, quoting Commonwealth v. Gordon, 422 Mass. 816, 849, 666 N.E.2d 122 (1996). This is so because a “view is not part of the trial,” Commonwealth v. Gomes, 459 Mass. 194, 199, 944 N.E.2d 1007 (2011), due to the fact that, “[a]lthough what is seen on the view may be used by the jury in reaching their verdict, in a ‘strict and narrow sense a view may be thought not to be evidence.’ ” Id., quoting Commonwealth v. Curry, 368 Mass. 195, 198, 330 N.E.2d 819 (1975).