Opinion
20-P-163
04-21-2022
COMMONWEALTH v. Ernest WALLACE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Ernest Wallace, was a friend and associate of Aaron Hernandez, the former player for the New England Patriots, who was convicted of shooting and killing Odin Lloyd on June 17, 2013, and who subsequently took his own life. See generally Commonwealth v. Hernandez, 481 Mass. 582 (2019). In the instant matter, Wallace was charged with the murder of Lloyd in the first degree, G. L. c. 265, § 1, and with being an accessory after the fact to the murder, G. L. c. 274, § 4. On the former charge, Wallace faced life imprisonment without the possibility of parole.
After a forty-five day trial, Wallace was acquitted of the murder but convicted of being an accessory after the fact. He was sentenced to four and one-half to seven years of imprisonment. This is his direct appeal.
Wallace claims that the evidence was insufficient to support his conviction and raises many other claims of error, alleging error in the jury instructions, the judge's evidentiary rulings, and actions of the prosecutor both before and during trial. Although some of these errors were preserved through objections raised at trial, many are raised for the first time on appeal. In this Commonwealth, in criminal cases, the failure to raise a claim of error at trial does not act as an absolute bar to relief. However, we reverse on the basis of unpreserved claims of error only where the defendant can demonstrate that the error created a substantial risk of a miscarriage of justice. Commonwealth v. Azar, 435 Mass. 675, 686-687 (2002). Having reviewed each claim of error under the appropriate standard, we now affirm.
Background. The victim, Odin Lloyd, was a twenty-seven year old resident of Dorchester and knew the defendant through a mutual connection with Aaron Hernandez. From March 2012, until his death, Lloyd was in a relationship with a woman named Shaneah Jenkins whose older sister, Shayanna, was dating Hernandez. Through this connection, Hernandez and the defendant occasionally met and socialized with Lloyd. The defendant and Hernandez were also friends with Carlos Ortiz, with whom they shared roots in Bristol, Connecticut. The defendant and Ortiz both lived in Bristol during the events of this case, while Hernandez lived in North Attleboro. Sometime in 2013, the defendant began working for Hernandez as a driver and traveling companion, receiving $1,000 per week in addition to various gifts for these services.
Around 3:30 A.M. on June 17, 2013, Lloyd was shot and killed in Corliss Landing, an undeveloped portion of an industrial park in North Attleboro (hereinafter, "Corliss Landing"). At trial, the defendant did not dispute that Hernandez, Lloyd, Ortiz, and the defendant were present in a Nissan Altima rental car that drove to Corliss Landing in the early hours of June 17, 2013, nor that Hernandez shot and killed Lloyd that morning. Rather, the defense theory as to the murder charge was that the defendant did not know Hernandez was going to shoot Lloyd and shared no intent to cause his death. Prior to the shooting, there were multiple phone calls between Lloyd's phone and Wallace's phone (the latter of which, the evidence showed, was being used by Hernandez). Spent ammunition found at the scene and during the autopsy revealed that Lloyd had been shot with a .45 caliber Glock firearm, but the police never recovered this weapon. However, they did discover a .22 caliber firearm discarded in the woods near Corliss Landing and later found .22 caliber ammunition in Hernandez's home.
The evidence adduced at trial established that after the shooting, Hernandez drove Ortiz and the defendant back to Hernandez's home in North Attleboro, where the three of them slept until later that morning. That afternoon, the defendant inspected the Nissan twice. He initially inspected it alone, and then inspected it again with Hernandez, opening the doors and rummaging around in the front seat. That evening, the defendant accompanied Hernandez and Ortiz to return the Nissan to an Enterprise car rental location in North Attleboro. The vehicle was four days overdue to be returned. The Enterprise manager who assisted Hernandez observed the defendant and Ortiz "help[ ] [Hernandez] move stuff ... [f]rom the back seat and front seat" of the Nissan into a Chrysler 300 which Hernandez rented during that visit. She later discovered various items, including a .45 caliber shell casing, had been left behind in the Nissan.
Later in the evening, the defendant drove himself and Ortiz, in the Chrysler 300, to Hernandez's apartment in Franklin. When the police arrived at Hernandez's North Attleboro home around 9:40 P.M. , Hernandez was notified and immediately called the defendant. CSLI records showed the defendant's and Ortiz's phones subsequently moved south from Franklin into Rhode Island and then Connecticut. Meanwhile, after Hernandez was taken to the North Attleboro police station, he continued to communicate with the defendant via phone while sitting in the station's interview room. Hernandez also texted Shayanna and instructed her to destroy his home surveillance system.
Later, Hernandez directed Shayanna over the telephone to give the defendant $500 for gas money, and Shayanna arranged to meet the defendant in a McDonald's parking lot in East Greenwich, Rhode Island. The defendant met Shayanna around 1 A.M. on June 18, at which time she gave him the money and told him to drive safely.
On June 21, the defendant activated a new cell phone and began traveling south. His phone that had been used by Hernandez on the night of the murder was never recovered. The defendant got rides from friends that took him as far as Georgia, and he paid for gas. In Georgia, he boarded a bus to his family's home in Florida.
On June 26, the police arrested Hernandez at his home. On June 27, the police discovered the Chrysler 300 that the defendant had used to transport himself and Ortiz out of Massachusetts abandoned in the parking lot of an apartment complex where neither Ortiz nor the defendant lived. An arrest warrant issued for the defendant on June 28, and he voluntarily surrendered to the authorities in Florida.
While the defendant was in custody awaiting trial, he made the following statements on a recorded jail telephone to his close friend (and Hernandez's cousin) Tanya Singleton-Valderamma:
"Hey, yo, tell Ink -- tell Ink I love him, man. Tell Ink I love him.... Tell him no matter what, man. Don't think I'm la-la-la'ing. I'll never go against the grain. You hear me? ... Tell him we got to work together. Tell him we got to work together.... Aight. I love that [n-word], man.... I'm riding.... I'm riding.... You hear me? I'm riding.... Cause, yo, this, la-la-la got us all into this, man, and they got to know."
The Commonwealth averred that the individual referred to as "Ink" in this conversation was Hernandez.
Discussion. 1. Sufficiency of the evidence. The defendant first challenges the sufficiency of the evidence to support his conviction as an accessory after the fact. During the trial, the defendant moved for a required finding of not guilty at the close of the Commonwealth's case and renewed that motion at the close of evidence. Both motions were denied.
In analyzing a sufficiency claim, we must ask "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis omitted). Commonwealth v. O'Connell, 438 Mass. 658, 661 (2003), quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Under this standard, "all permissible inferences are drawn in favor of [the] Commonwealth"; such inferences "need only be reasonable and possible ... not necessary or inescapable" (citations omitted). Commonwealth v. Gomez, 450 Mass. 704, 709–710 (2008).
Under G. L. c. 274, § 4, a conviction for being an accessory after the fact requires proof of three elements: first, the principal in the crime must have committed a felony; second, the accessory must have knowledge of the felony which has occurred; third, the accessory must have harbored, maintained, concealed, or assisted the principal felon with the specific intent that the principal should avoid or escape detention, arrest, trial, or punishment. See Commonwealth v. Rivera, 482 Mass. 145, 147-148 (2019). The allegation here is that the defendant assisted Hernandez with the specific intent that Hernandez avoid detention, arrest, trial, or punishment.
The defendant conceded at trial that he was present when Hernandez shot and killed Lloyd. He therefore does not challenge the sufficiency of the evidence to establish that Hernandez committed a felony or that the defendant knew about it. The defendant argues, rather, that there was insufficient evidence to support a finding that he assisted Hernandez with the specific intent to help him avoid detention, arrest, trial, or punishment. We disagree.
Assistance may, of course, take many forms. See, e.g., Commonwealth v. Barnes, 369 Mass. 462, 464 (1976) (disposing of robbery evidence and murder weapon); Commonwealth v. Tilley, 327 Mass. 540, 546 (1951) (disposing of stolen property); Commonwealth v. Hoshi H., 72 Mass. App. Ct. 18, 19 (2008) (helping principal leave town); Commonwealth v. Sims, 41 Mass. App. Ct. 902, 903 (1996) (fleeing scene of shooting with principal and disposing of weapon). The evidence in this case would have allowed the jury to conclude beyond a reasonable doubt that Wallace assisted Hernandez with the requisite intent in any of several ways.
First, the jury could have found the defendant assisted with disposing of evidence connecting Hernandez to the shooting by assisting with the return of the rental car. The evidence permitted the jury to find that the defendant assisted Hernandez in examining the interior of the Nissan used to transport the victim to the murder scene, accompanied Hernandez to return the vehicle, and was witnessed removing items from the vehicle at the Enterprise rental agency. Examining the vehicle as the defendant did, would have allowed the discovery of any evidence that might have remained in the car (whether or not the defendant was successful in removing all of it). Returning the vehicle ensured that it would not be present at Hernandez's home when the police arrived to investigate. That Hernandez could have returned the vehicle alone, as the defendant argues, does not mean that the defendant did not in fact assist him in doing so. Although it is true, as the defendant points out, that returning rental cars was part of the defendant's job, the particular timing of the return here (four days after the car was due and directly after the murder) supports an inference that its return was due to its use in the murder, and a desire that, in order to aid Hernandez in avoiding arrest and punishment, the car and its contents be distanced from Hernandez.
Next, the defendant drove himself and Ortiz home to Connecticut using the Chrysler that Hernandez had rented from Enterprise, abandoning the vehicle in Connecticut. Since the defendant and Ortiz were witnesses to the murder, the jury could have found that they fled Massachusetts so that they were not present when police began interviewing witnesses, and therefore to assist Hernandez so that Hernandez might escape being caught and prosecuted for Lloyd's murder.
Likewise, the jury could also properly have inferred that the defendant's act of fleeing south to Florida amounted to assistance to Hernandez, with the specific intent that Hernandez avoid detention, arrest, trial, or punishment. The jury could have found that, before his flight, the defendant was in contact with Shayanna and arranged to meet with her to collect $500 in "gas money" which she provided to him at Hernandez's behest. These actions permit the inference that the defendant's conduct was at least to some extent coordinated by Hernandez and for Hernandez's benefit. The jury could have inferred a culpable intent on the defendant's part to assist Hernandez.
The jury could have also inferred that the defendant disposed of the phone he had previously used to communicate with Hernandez and that Hernandez had used to communicate with Lloyd on the night of the shooting. Police never recovered that phone, and a few days after the murder the defendant activated a new phone. A reasonable juror could have found that the defendant disposed of the old phone in order to conceal incriminating communications between Hernandez and the defendant or between Hernandez and Lloyd.
Of course, all these acts by the defendant might also have been motivated by a desire to protect himself. Thus, the defendant contends, for example, that he fled to Florida in order to "extricat[e] himself from the situation Hernandez impulsively and unexpectedly created" and was "solely motivated by concern for himself." The accessory after the fact statute, however, contemplates that an individual's motivations for performing criminal acts may be complex and multifaceted; that the defendant may have been motivated by a desire to help himself as well as Hernandez would not insulate him from liability under the statute. See Commonwealth v. Doherty, 353 Mass. 197, 205 (1967) ("The fact that the same acts also assisted [defendant's] wife [in addition to the principal] ... does not preclude his conviction"). See also Commonwealth v. Homsey, 6 Mass. App Ct. 913, 914 (1978) (false statements made in part to protect himself did not contradict finding that defendant also intended to aid principal with same statements). Cf. Commonwealth v. Iacoviello, 90 Mass. App. Ct. 231, 247-248 (2016) (statutory defense of consanguinity could not shield defendant from conviction where defendant's conduct assisted his brother in addition to principal felon). Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found that these acts were motivated at least in part by a desire to aid Hernandez. The defendant's friendship with Hernandez, his employment by Hernandez, and his subsequent jailhouse statements professing his love for and loyalty to Hernandez, lend further credence to the inference that one motivation for those acts described above that might have had the effect of protecting both him and Hernandez from being caught was to protect Hernandez. The evidence thus was sufficient to support the conviction.
2. Territorial jurisdiction instruction. The defendant argues next that the judge erred by failing to instruct the jury that any alleged acts supporting the accessory charge must have occurred within Massachusetts. Because the defendant did not object to the judge's instructions at trial, this panel reviews this claim only to determine whether there was error and, if so, whether it created a substantial risk of a miscarriage of justice.
The defendant claims that this instruction was required because the jury was not permitted to consider evidence of acts that occurred outside of the state such as allegedly disposing of his cell phone, meeting with Shayanna to collect the $500, and abandoning the Chrysler. We agree, however, with the Commonwealth that the "effects doctrine," which permits prosecution of a defendant for acts done outside the State's borders which were intended to have an effect within the State, is applicable here. Commonwealth v. Hare, 361 Mass. 263, 265 (1972) (discussing a charge of accessory before the fact). The defendant concedes that Hernandez killed Lloyd in Massachusetts, that the defendant became aware of this crime in Massachusetts, and that at all relevant times, Hernandez faced prosecution in Massachusetts. Accordingly, if the jury determined that the defendant's out-of-State actions were intended to help Hernandez evade arrest and prosecution in Massachusetts, then they would necessarily also find that these actions were intended to have an effect in Massachusetts. The failure to give a territorial jurisdiction instruction, therefore, was not error.
3. Specific unanimity instruction. The defendant asserts next that the absence of a specific unanimity instruction to the jury was error. Specific unanimity instructions indicate to the jury that they must agree "as to which specific act constitutes the offense charged." Commonwealth v. Palermo, 482 Mass. 620, 629 (2019), quoting Commonwealth v. Keevan, 400 Mass. 557, 566-567 (1987). "Such an instruction is required when, on a single charged offense, the prosecutor presents evidence of separate, discrete incidents, any one of which would suffice by itself to make out the crime charged" (citation and quotations omitted). Palermo, supra at 629. Where there are "distinguishing differences between the successive events," there may be "reason to fear that the jury will pick and choose among the alleged incidents and convict the defendant while disagreeing as to which of them were committed." Id. at 630, quoting Commonwealth v. Santos, 440 Mass. 281, 286 (2003).
Thus, in Palermo, for example, the defendant was convicted on one count of "threatening to commit a crime," where the jury had heard evidence of two distinct threats made against two different parties during the same altercation. Palermo, 482 Mass. at 628-629. The jury were not instructed as to which of these incidents constituted the threat, "thus permitting the jury to return a verdict of ‘guilty’ without reaching a unanimous consensus as to which facts supported that charge." Id. at 736. The Supreme Judicial Court held that in such a case, "the jury must all agree as to at least one, specific incident; otherwise, there is not unanimous agreement that [the defendant] has committed any crime" (citation and quotations omitted). Id. at 629. "Absent a specific unanimity instruction, the jury might mistakenly believe that they could convict the defendant even if they disagreed as to which of the alleged criminal acts he ... had committed." Id., quoting Santos, 440 Mass. at 285. Because there "were reasons for the jury to question whether the defendant made either threat," the Palermo court reversed the defendant's conviction, finding that "the jurors reasonably could have reached disparate conclusions of fact." 482 Mass. at 630-631.
In the present case, the Commonwealth presented evidence that the defendant undertook discrete actions which collectively or individually could have sufficed to convict him of the accessory charge. As the defendant states, these include "allegedly going with Hernandez to return Hernandez's Nissan Altima rental car and inspecting the car on June 17, 2013, ... driving with Ortiz to Connecticut on June 18, 2013, allegedly abandoning the Chrysler 300 on June 21, 2013 in Bristol[,] CT," discarding his cell phone after his arrival in Connecticut, getting gas money from Shayanna, "traveling to Florida on June 24, 2013, ... and making statements on recorded jail calls on diverse dates during July 2013."
The Commonwealth counters that the evidence here did not present "separate instances of being an accessory after the fact," but rather a series of acts constituting a single "course of conduct." Even if there were multiple, distinct acts potentially constituting a single charged crime, "where the spatial and temporal separations between acts are short, that is, where the facts show a continuing course of conduct, rather than a succession of clearly detached incidents, a specific unanimity instruction is not required." Santos, 440 Mass. at 285, quoting Commonwealth v. Thatch, 39 Mass. App. Ct. 904, 905 (1995).
We will assume without deciding that, if he had requested one, the defendant would have been entitled to a specific unanimity instruction. Nonetheless, we see no substantial risk of a miscarriage of justice in the failure of the court to give such an instruction sua sponte. See Commonwealth v. Lewis, 48 Mass. App. Ct. 343, 350 (1999). The evidence was strong with respect to many of the various acts of the defendant, described above, subsequent to the murder. The most substantial issue was whether the defendant undertook those acts with the requisite intent. In these circumstances, as we did in Lewis, we conclude that "[t]he evidence did not create the risk that the jury would reach a nonunanimous verdict," and therefore there was no substantial risk of a miscarriage of justice. See id., quoting Commonwealth v. Comtois, 399 Mass. 668, 677 (1987) ("it does not appear likely that the jury verdict would have been different even if the judge had given the specific instruction now requested by the defendant").
4. Instructions regarding which alleged acts the jury could consider. The defendant claims next that the trial judge should have instructed the jury that the only alleged acts they could consider for the accessory charge were (1) the allegation that the defendant drove Ortiz out of the State and (2) the allegation that the defendant looked at the Nissan Altima rental car after the shooting and that he removed evidence from that car. First, the defendant points to the Commonwealth's "concession" at a pretrial conference that the disposal of the phone, disposal of the rental car, and the defendant's flight were not "criminal acts," and asserts that these were therefore lawful acts that were only admissible to show consciousness of guilt. This argument is meritless. At no point did the prosecutor suggest that these acts were unrelated to the charged offenses, nor did the prosecutor evince any intent to circumscribe the use of any evidence of these acts in proving the accessory charge. The jury was free to consider these acts as evidence of that charge.
Second, the defendant claims that because the trial judge, in denying the defendant's pretrial motion to dismiss the accessory indictment, found that "the first grand jury did hear evidence of at least two acts that provide probable cause to believe that Wallace was an accessory after the fact to murder," the Commonwealth could only attempt to prove, and the jury should have been instructed it could only consider, those two incidents. However, we have "never required that there be an exact match between the evidence presented at trial and that presented to the grand jury." Commonwealth v. Clayton, 63 Mass. App. Ct. 608, 612 (2005). A variance between the allegations presented to the grand jury and the proof adduced at trial is insufficient to acquit a defendant "if the essential elements of the crime are correctly stated, unless he is thereby prejudiced." G. L. c. 277, § 35. We find no evidence that the defendant was surprised by the allegations or proof that the Commonwealth presented at trial and thus find no prejudice which would require reversal.
Finally, the defendant claims that the indictment referred only to North Attleboro in Bristol County, and therefore the jury should have been instructed that the accessory charge could only be proven by his alleged acts in Bristol County. He is mistaken. The indictment states that the murder itself took place in Bristol County but says nothing about the location of the various alleged acts supporting the accessory charge. Further, the "place of the commission of the crime need not be alleged unless it is an essential element thereof." G. L. c. 277, § 20. In the present case, the precise locations of the defendant's alleged acts were immaterial to the charged offense and there is no indication that the defendant was surprised or prejudiced by the evidence of his acts outside of Bristol County.
5. Instructions regarding burden of proof. The defendant claims that the trial judge's instructions to the jury were defective because they lessened the Commonwealth's burden of proof as to the accessory charge and shifted the burden onto the defendant. The judge instructed the jury: "If you view the evidence in this case as reasonably permitting the conclusion that Mr. Wallace assisted or aided Mr. Hernandez for some purpose other than to help Mr. Hernandez avoid detention, arrest, trial, or punishment, you cannot find Mr. Wallace guilty of the offense of accessory after the fact." The defendant asserts that this instruction required the jury to find that "the evidence reasonably permitted the conclusion that Wallace did an act for a purpose other than to help Hernandez." We disagree. Read in context, the instruction simply informed the jury that they could not find the defendant guilty if the evidence created a reasonable doubt that he specifically intended to help Hernandez evade prosecution. Further, the instructions as a whole properly charged the jury on the elements of the crime, their obligation to reach a unanimous verdict, and the requirement that the Commonwealth prove all essential elements beyond a reasonable doubt. There was no improper burden shifting here.
6. Consciousness of guilt instruction. The defendant's final claim regarding the jury instructions is that it was improper for the judge to instruct the jury that they could consider consciousness of guilt evidence in their deliberations on the accessory charge. Specifically, the judge instructed the jury that they may infer consciousness of guilt as to both charges from evidence the defendant "engaged in flight or did something that appears designed to cover up the commission of a crime," and may consider whether "such feelings of guilt tend to show actual guilt on any of these charges." The defendant avers that this was error because the judge did not instruct the jury that consciousness of guilt evidence could not be used as proof of intent. However, whether certain acts were part of the accessory charge itself or demonstrated consciousness of guilt as to the murder or the accessory charge (or both) was a question of fact for the jury. Commonwealth v. Booker, 386 Mass. 466, 470 (1982). Further, the judge appropriately instructed the jury that consciousness of guilt evidence "is never enough by itself to convict the person of a crime." Given the evidence that the defendant assisted Hernandez after Lloyd's murder, the jury could reasonably view certain acts as evincing consciousness of guilt and others as constituting independent evidence of the accessory offense. Accordingly, the trial judge was not required to instruct the jury that certain acts could only be considered as evidence of consciousness of guilt, or as proof of the substantive elements of the accessory charge, where the character of the evidence supported either use. Finally, the verdicts indicate that the jury appreciated the distinction; despite the purported consciousness of guilt evidence, they did not convict the defendant of murder but did convict him of being an accessory after the fact.
7. Bill of particulars. Prior to trial, the defendant filed a motion for a bill of particulars with respect to the accessory charge, which was allowed. Nothing in the docket indicates that the Commonwealth ever filed a written bill of particulars.
The defendant correctly asserts that he was entitled to a bill of particulars for the accessory charge once the trial judge allowed his pretrial motion asking for one. Assuming the Commonwealth did not in fact produce a bill of particulars, that failure was error. The defendant, however, did not object to the Commonwealth's failure to comply with the trial judge's order. The question before us then, is whether the Commonwealth's failure to produce a bill of particulars created a substantial risk of a miscarriage of justice.
A precondition for a finding that an error created a substantial risk of a miscarriage of justice is that "we may infer from the record that counsel's failure to object was not a reasonable tactical decision." Commonwealth v. Russell, 439 Mass. 340, 345 (2003). Given the fact that, at one point, the defense sought the bill of particulars, the question arises whether defense counsel's subsequent failure to seek clarification about the precise acts that the Commonwealth alleged supported the accessory charge was a result of a strategic choice not to limit the scope of the jury's ability to convict the defendant of the less serious accessory offense in order to maximize the possibility of his acquittal of murder in the first degree. Nothing at all was said in closing about the accessory charge -- and the defense succeeded in obtaining an acquittal on the more serious murder charge. We cannot conclude on this record that the failure to follow up with respect to the bill of particulars was not a reasonable tactical decision of counsel. Thus, we cannot conclude on this record that the error created a substantial risk of a miscarriage of justice.
8. Testimony of Shayanna Jenkins. The defendant next claims that the Commonwealth "recklessly and erroneously" called Shayanna Jenkins as an immunized trial witness, because she had been charged with perjury based on her testimony to a grand jury in earlier proceedings. These charges were dismissed pursuant to an immunity order, and another immunity order compelled her to testify in the present case. The defendant argues that allowing her to testify violated his constitutional right to due process and to a fair trial. We are satisfied that the defendant's constitutional rights were adequately protected, however, by the opportunity for extensive cross-examination at trial about both the charges of perjury and the subsequent grant of immunity. Assessing the credibility of the witness was ultimately the province of the jury. See Commonwealth v. Figueroa, 451 Mass. 566, 578 (2008).
9. Propriety of prosecutor's argument. The defendant asserts that the prosecutor made several improper arguments during opening and closing statements. First, he argues that the prosecutor erroneously stated in opening that the Nissan Altima was not due back to Enterprise when Hernandez and the defendant returned it on June 17th, 2013, when in fact it was overdue on that date. Second, despite the judge's prior order not to make an impermissible argument about red shoes recovered at Hernandez's house, the prosecutor in closing suggested an impermissible inference that the defendant was wearing those shoes on the night of Lloyd's murder and left them at Hernandez's house. Third, the defendant argues that the prosecutor improperly suggested that the defendant reached back from the front passenger seat to push open the window in the back seat, despite the fact that this could not be established by the fingerprint evidence.
"In analyzing a claim of improper argument, the prosecutor's remarks must be viewed in light of the ‘entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial.’ " Commonwealth v. Lamrini, 392 Mass. 427, 432 (1984), quoting Commonwealth v. Bourgeois, 391 Mass. 869, 885 (1984). Because the defendant did not object to the opening statement, we consider whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Croken, 432 Mass. 266, 268 (2000). Here, the prosecutor correctly stated that the Nissan Altima used in connection with Lloyd's murder was "not due back" on the day it was returned. While the defendant argues that this statement implied that the vehicle was not due back prior to that day, there was no error because the vehicle was due back several days prior, and the prosecutor can reasonably be understood to be saying that it was returned on that particular day because it had been used in the murder the previous night. The argued inference that Hernandez and the defendant returned the vehicle on the 17th in order to dispose of evidence of the murder is firmly rooted in the evidence, and we find no error here.
Regarding the statement about the red shoes, the trial judge appropriately responded to the prosecutor's improper argument by interrupting the prosecutor and instructing the jury as follows: "The fact of leaving the shoes behind isn't, if you find shoes that were left behind by the defendant, is not anything from which you may draw an inference adverse to Mr. Wallace." This forcefully informed the jury that they could not base any adverse inference on the shoes, and thus any prejudice from the prosecutor's mention of them was cured.
Finally, even assuming that the fingerprint evidence did not support the assertion that the defendant, at some point, reached back from the front passenger seat in order to open the back seat door, we fail to see how this could prejudice the defendant. There is no clearly articulable connection between this alleged behavior and the accessory after the fact charge, and no such connection was argued by the prosecutor in closing argument. At most, the prosecutor espoused the argument that this was evidence of the defendant's participation in the murder, of which the defendant was acquitted. In the absence of any prejudice, this reference to an irrelevant inference is not grounds for reversal.
10. Police witness's out-of-court encounter with a juror during the trial. During trial, after proceedings had concluded for the week, one of the Commonwealth's witnesses -- a police officer from Connecticut -- encountered a juror at a Wendy's restaurant. The two had a brief conversation, and the officer paid for the juror's order. The officer told the prosecution about the interaction on the Thursday when it occurred. The prosecution disclosed the information to the trial judge and the defendant when proceedings resumed the following Monday. The judge conducted a voir dire of the juror and learned that he had mentioned the interaction to some other jurors. After learning of this fact, the judge conducted an individual voir dire of the entire jury, finding that at least nine jurors had heard of the encounter, but that each of them testified they could remain fair and impartial. Out of caution, she dismissed the juror who had encountered the police witness initially and gave a curative instruction to the remaining jurors. The defendant did not request a mistrial, but merely a dismissal of the juror who was dismissed and a curative instruction.
The defendant argues that the Commonwealth should have informed defense counsel and the judge about the encounter on the Thursday the prosecutor learned of it so that the juror in question could have been separated from the remaining jurors before he had a chance to tell them about the encounter. The defendant avers that this information could have caused the remaining jurors to feel intimidated or believe that the police were "following or watching them and felt that they had to at least convict [the defendant] of something to appease law enforcement."
Although we do not approve of the failure to inform the judge until the following Monday, we think the judge's prompt steps to address the issue cured any error. In cases involving external influences on the jury, "[t]he judge has broad discretion to fashion an appropriate remedy, if one is necessary. It is within the judge's discretion to determine that the jury -- the remaining and alternate jurors -- can fairly decide the matter" (citation omitted). Commonwealth v. Blanchard, 476 Mass. 1026, 1028 (2017). In the present case, once apprised of the facts, the judge promptly and appropriately conducted voir dire of the entire jury and determined that the remaining jurors would be able to remain impartial and render a fair verdict, a conclusion which is supported by the fact that they acquitted the defendant of the more serious murder charge. She then dismissed the juror who had the encounter with the police witness and gave a curative instruction, which was precisely the remedy requested by defense counsel, and was an appropriate remedy here.
11. Evidentiary rulings. The defendant next argues that several of the trial judge's rulings on the admissibility of evidence were erroneous and caused prejudice requiring reversal.
This court reviews a judge's evidentiary rulings for an abuse of discretion to determine whether the judge made "a clear error of judgement in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives" (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). The trial judge here made no clear errors which would warrant reversal.
First, the judge excluded allegedly "exculpatory statements" which the defendant made to the police while they transported him from Florida to Massachusetts after his arrest. Specifically, the defendant told the police that he "could not believe what was happening," observing that Hernandez had "just signed a [$40 million] contract and just threw it all away." The defendant also said that he could not believe that he was "in such a mess," that his "life was supposed to be turned around," and he was "supposed to be a driver for Hernandez."
The judge excluded these statements as hearsay, concluding that they were not party admissions because their introduction was not sought by the opposing party. The defendant argued only that in certain circumstances a defendant was permitted to introduce his own hearsay statements.
The defendant now argues that the statements were not hearsay because they were not offered for their truth (i.e., to prove that Hernandez had just signed a $40 million contract or that he had thrown his life away) but rather to demonstrate that the defendant "was not acting to aid Hernandez ... and that [the defendant] was still in disbelief at Hernandez's alleged actions." The defendant further argues that these statements demonstrate that he did not hide his knowledge of the crime from the police, and that he left Massachusetts because he was in shock from what Hernandez had done.
Because these arguments were not raised below, we review the claim of error to determine whether it created a substantial risk of a miscarriage of justice. Even assuming the exclusion of these statements was error, we are not persuaded it created a substantial miscarriage of justice given their weakness as exculpatory evidence.
Second, the defendant sought to exclude statements he made to Tanya Singleton-Valderamma, recorded during jailhouse telephone calls, claiming the statements were more prejudicial than probative. He also claims that Singleton-Valderamma's statements during these phone calls should have been excluded as hearsay.
To begin with, the defendant's own statements were admissible as extrajudicial statements made by a party opponent unless subject to exclusion on other grounds. See Commonwealth v. Spencer, 465 Mass. 32, 46 (2013) ; Mass. G. Evid. § 801(d)(2)(A) (2020). We find no such grounds here. The judge was within her discretion in concluding the risk of unfair prejudice from admitting the statements did not substantially outweigh their probative value. While the jury may reasonably interpret statements such as "I'm riding" and "[t]ell him we got to work together" in more than one way, including as evidence of the defendant's intent to assist Hernandez in avoiding detention, arrest, trial, or punishment, the trial judge properly exercised her discretion by allowing the jury to consider those statements in light of all the evidence. There was no error. Further, the judge had discretion to admit Singleton-Valderamma's statements under the doctrine of verbal completeness, because they would serve to "clarify the context of the admitted portion" of the conversation with the defendant. See Commonwealth v. Amaral, 482 Mass. 496, 503-504 (2019), quoting Commonwealth v. Crayton, 470 Mass. 228, 246 (2014). These statements would help the jury understand the conversation and so their admission was not an abuse of discretion.
Third, the defendant objects to the judge's refusal to admit an affidavit from his lead trial counsel in which counsel stated that the defendant refused to cooperate with law enforcement based on counsel's legal advice. The defendant argued that this affidavit would allow the jury to conclude that his jailhouse statements were merely an expression of his desire to invoke his right to remain silent and proceed to trial. By providing this "context," the defendant sought to use the affidavit to rebut any negative inference that the jury might make from the defendant's statements during the calls.
There was no error. The affidavit is inadmissible hearsay, and it is not based on personal knowledge but contains only speculation about what the defendant meant by those statements.
Finally, the defendant claims that all evidence relating to the .22 caliber firearm recovered in the woods near Corliss Landing near Hernandez's home should have been excluded. This claim of error was preserved.
This firearm was linked to the defendant through his phone records, which showed he had been in contact with the person who had purchased the gun on Hernandez's behalf in Florida, and by a boarding pass bearing the defendant's name that was found in the car used to transport the weapon to Massachusetts. At trial, the Commonwealth argued that this firearm was in the car on the night of Lloyd's murder and someone, possibly the defendant, discarded it after the shooting. The defendant argues that this evidence was admitted in error because the .22 caliber firearm was not used to shoot Lloyd and was irrelevant to the accessory charge.
The defendant, however, was charged with both murder and being an accessory after the fact. The admission of this evidence was obviously permissible, as it bore on the defendant's role in Lloyd's murder, which was tried on a theory of joint venture.
There was no error in its admission.
Judgment affirmed.