Commonwealth v. Mitchell

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12-P-719 Appeals Court

COMMONWEALTH vs. MARKEESE MITCHELL (and two companion cases1).

No. 12-P-719.

Suffolk. September 10, 2015. - January 28, 2016.

Present: Green, Rubin, & Hanlon, JJ.

Homicide. Practice, Criminal, Motion to suppress, Admissions
and confessions, Voluntariness of statement, Sentence,
Severance, Confrontation of witnesses, Argument by
prosecutor, Instructions to jury. Evidence, Voluntariness
of statement, Statement of codefendant, Verbal
completeness, Relevancy and materiality, Knife, Bias.
Constitutional Law, Admissions and confessions,
Voluntariness of statement, Sentence, Confrontation of
witnesses.

Indictments found and returned in the Superior Court
Department on April 18, 2008.

Pretrial motions to suppress evidence and to sever were
heard by Charles J. Hely, J.; the cases were tried before Judith
Fabricant, J., and a motion for a postconviction evidentiary
hearing, filed on December 3, 2012, was heard by her.

Richard L. Goldman for Terrance Pabon.
Richard B. Klibaner for Pedro Ortiz.
Jeanne M. Kempthorne for Markeese Mitchell.
Amanda Teo, Assistant District Attorney (Mark A. Hallal,

1
One against Terrance Pabon and one against Pedro Ortiz.
2

Assistant District Attorney, with her) for the Commonwealth.

HANLON, J. After a jury trial, the defendants, Markeese

Mitchell, Terrance Pabon, and Pedro Ortiz were convicted of

murder in the second degree in connection with the stabbing

death of Terrance Jacobs. Paul Goode also was indicted, tried

with the defendants, and convicted of murder in the second

degree. Goode's direct appeal originally was consolidated with

the others; however, by motion and pursuant to an order of this

court, Goode's appeal was severed. Goode's statement to the

police was admitted at trial and is the predicate for one of the

defendants' common claims of error, under Bruton v. United

States, 391 U.S. 123, 135-137 (1968). Pabon and Mitchell claim

error in the denial of their respective motions to suppress

their statements to the police. They also contend that, because

they were between the ages of fourteen and seventeen when the

crime occurred, they ought to have been afforded individualized

sentencing, in light of Miller v. Alabama, 132 S. Ct. 2455

(2012), and Diatchenko v. District Attorney for the Suffolk

Dist., 466 Mass. 655 (2013). In addition, some or all of the

defendants claim error in the admission of Pabon's statement to

the police; certain evidentiary rulings at trial; certain

remarks made by the prosecutor in closing argument; the denial

of their request for a jury instruction on withdrawal from a
3

joint venture; and the denial of their postconviction motion for

permission to inquire of a juror who, they alleged, had reasons

to be biased against them.

We have examined each of their contentions and conclude

there was no error. We therefore affirm the judgments and the

order of the judge denying the postconviction motion.

Background. The jury could have found the following facts.2

On May 22, 2007, sixteen year old Terrance Jacobs was beaten and

stabbed to death in the Mattapan section of Boston. Four months

earlier, Jacobs had been charged with slashing the face of one

Jaleek Leary outside a local skating rink called "Chez Vous."

Leary was fourteen years old and the defendants were among his

friends and relatives.

On the afternoon of May 22, 2007, Pabon, Mitchell, and

Ortiz were in the area of 10 Wilcock Street in Mattapan,

drinking and smoking. A number of other individuals were

present, including the codefendant Goode and one Dedrick Cole,

who testified at the trial. At 7:00 P.M., Richard Allen and

Orlando Waters arrived and approached the group. Waters

indicated that he was part of a local gang ("M.O.B."). Ortiz

responded that someone from M.O.B. had slashed the face of his

cousin, Jaleek Leary. Ortiz sought "a fair one" -- i.e., a one-

2
We reserve a more detailed description of the facts for
discussion of the relevant issues.
4

on-one fistfight without weapons -- in response to that attack.

Waters said that he was amenable; he returned to his vehicle and

drove away. Allen remained on the scene. Ortiz then informed

Cole that either Pabon or Emmanuel DeJesus ("Pudge") would fight

the "kid" (i.e., Jacobs) who had cut Leary.

Approximately thirty minutes later, at about 7:30 P.M., and

while it was still daylight, Waters returned to Wilcock Street,

accompanied by two males. Cole recognized one of the two males

as a "guy I knew as Justice." After exchanging brief words with

Allen, Waters left the scene, only to return with a larger

group; among them was the victim, a boy whom Cole had known as

"Terra."

When the two groups faced off, Ortiz asked Waters if the

fight was "on." Ortiz pointed to Pudge as the fighter for the

Wilcock Street group. Pudge was just under six feet tall and

muscular, weighing about 210 pounds. The victim voiced some

qualms about fighting Pudge. The victim was slightly built, no

more than 150 pounds, and at least four inches shorter than his

opponent. While the victim continued to express his misgivings

about having to fight, Waters forcibly pushed him toward Pudge,

sparking a brawl among all present. Ortiz, Pabon, and Mitchell

struck the victim in the face with their fists. Waters and two

associates initially joined the scrum but then backed off, but
5

not before one man took out a handgun and fired three or four

shots toward the crowd, prompting those assembled to flee.

The victim managed to gather himself and then ran on foot

into oncoming traffic on Blue Hill Avenue. Pabon chased after

him and stabbed him in the back more than once, using a knife.

Mitchell, Ortiz, and Goode followed in pursuit. They all turned

onto Havelock Street,3 where the chase was recorded by two

surveillance cameras mounted on an establishment known as Kay's

Oasis, at the corner of Havelock Street and Blue Hill Avenue.

All of the defendants were identified in the surveillance

footage, which showed them running (or, in Mitchell's case,

riding a bicycle) to and from the area where the victim was

found lying face down, bleeding profusely.4 There was testimony

that Mitchell stabbed the victim and then walked away "wiping

the blood on a pole." Another witness testified that Mitchell,

Ortiz, and Pabon all stabbed the victim. Still another witness

testified that "[t]he person that was on the bike was ramming

their bike into the person on the ground," while another person

was "making a jabbing motion with [his] right hand . . . [a]nd

3
Wilcock Street and Havelock Street are one-way parallel
streets, lying side by side off Blue Hill Avenue, which is a
main thoroughfare in Mattapan and Dorchester.
4
The surveillance cameras did not capture what happened at
the location where the victim was found lying on the ground.
However, he had sustained at least nineteen stab wounds.
6

also kicking" the victim, in the "abdomen area . . . , chest,

back, stomach area."

At about 8:00 P.M., a Boston police detective came to the

scene in an unmarked vehicle; he had been alerted about the

street brawl by a concerned citizen. Within a minute or two,

Boston emergency medical technicians arrived, attended to the

victim, and transported him to a local hospital, where he was

pronounced dead. The murder weapons were not recovered.

On June 19, 2007, two Boston police detectives, in plain

clothes, interviewed Pabon at his Avondale Street home, in the

presence of his mother. Pabon's interview was recorded and

admitted at trial, over the codefendants' objections. Eight

days later, on June 27, the same detectives interviewed

Mitchell, with his father and grandfather present, at the home

of his grandfather in Brockton. Mitchell made a statement to

police but declined to have a recording made.

Pabon and Mitchell filed separate motions to suppress their

statements to the police. A motion judge, who was not the trial

judge, denied both motions with careful findings of fact and

rulings. The motion judge also heard the defendants' motions to

sever each of their respective cases for trial; the requests

were based upon what the defendants perceived to be a Bruton

issue stemming from the Commonwealth's expected use, at the

joint trial, of a statement that Goode had made to the police.
7

The judge denied the severance requests and ordered that Goode's

police statement be redacted to exclude any reference to any

codefendant by name. The Commonwealth did so.

Analysis. 1. Motions to suppress. Reviewing the denial

of a motion to suppress, we must accept the motion judge's

findings of fact, which shall not be disturbed absent clear

error. Commonwealth v. Tremblay, 460 Mass. 199, 205 (2011). We

review de novo the judge's application of the law to the facts

found. Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).

Questions as to the credibility of a witness are matters for the

judge to decide. Commonwealth v. Tremblay, supra.

a. Mitchell's statement. The motion judge found the

following facts. On June 27, 2007, Mitchell's grandfather,

Timothy Johnson, returned a telephone call from a Boston police

detective and agreed that the police would interview Mitchell at

Johnson's home in Brockton. That same day, at about 9:05 P.M.,

Detectives Paul McLaughlin and Michael Devane arrived at

Johnson's home in plain clothes and met with Johnson, Mitchell,

and Mitchell's father, Humberto Hernandez. Mitchell was sixteen

years old. The detectives told the three that, if they felt

uncomfortable at all, they could end the conversation at any

time and the detectives would leave. Johnson asked the

detectives to sit at a kitchen table for the interview. When

Mitchell joined them, the detectives told him that they were
8

from the Boston Police Homicide Unit and assigned to the

investigation of the victim's murder. Mitchell, Johnson, and

Hernandez agreed to go forward with the interview.

Mitchell denied any knowledge of the incident and stated

that he did not recall seeing anyone get stabbed. McLaughlin

then asked to speak with Johnson and Hernandez separately, in an

adjacent room, and he showed the two men photographs of Mitchell

on a bicycle and on foot at the crime scene. McLaughlin

indicated that Mitchell was not telling the truth about the

incident. In the interim, nothing of substance was said between

Devane and Mitchell at the kitchen table. The detectives then

asked if they could make a sound recording of the remainder of

the interview. Johnson, Hernandez, and Mitchell all declined.

The detectives informed Mitchell that they knew he was at

least a witness to the stabbing, and they showed him a

surveillance photograph depicting a young man in a red shirt on

a bicycle; Mitchell admitted that he was the boy on the bicycle.

Presented with a second photograph, Mitchell admitted that he

was the boy in the image depicted running next to another male

on a bicycle. Those photographs were taken just minutes before

the victim was stabbed while he was lying close by on the

sidewalk. Mitchell also confirmed that he was the boy in a red

shirt seen running in two other photos. Mitchell said he could

not identify anyone else in those photographs.
9

When the detectives showed Mitchell other surveillance

photographs, he identified a "black/Hispanic" male in a green

tank top as "Terrance," and said he did not know Terrance's last

name. In another photo, Mitchell identified a similar male in a

striped shirt as Terrance. The detectives determined that this

male was Terrance Pabon.

In response to McLaughlin's observation that the

surveillance video showed Mitchell running directly to the spot

where the stabbing took place, Mitchell stated, "I just remember

kids running." He added, "I kept running" and "I didn't see

anything." Mitchell stated that he ran through a nearby yard to

reach Wilcock Street. He denied taking a knife from one of the

attackers and wiping the blade on an object. The detectives

told Mitchell and his father and grandfather that Mitchell was

not being honest about the incident and that they might need to

talk with him again. The interview ended and the detectives

left the home at 10:25 P.M.; Mitchell was not arrested until

March, 2008.

In a supplemental brief, Mitchell argues that the motion

judge's finding that his statement was voluntary was erroneous,

given the "totality of the circumstances, including his age,

mental, psychological, and educational deficits, and other

factors." He also argues that the motion judge did not take

into account his age in determining that he was not in custody
10

during the meeting with police and that, as a result, Miranda

warnings should have been given to him and his father and

grandfather.

We disagree, essentially for the reasons well explained and

supported by the motion judge.5 We are satisfied that Mitchell's

statement to the police was not a product of a custodial police

interrogation and that, as a result, no Miranda warning was

required. Miranda v. Arizona, 384 U.S. 436, 444 (1966). See

Commonwealth v. Bermudez, 83 Mass. App. Ct. 46, 51-53 (2012).

See also Commonwealth v. Libby, 472 Mass. 37, 47 (2015) ("Given

5
The judge noted, inter alia, that the detectives did not
appear at the grandfather's home by surprise; they had made an
appointment, giving the defendant time to consult with two
interested adults before the interview began. The judge
indicated his awareness of the defendant's limitations,
including a diagnosis of attention deficit hyperactivity
disorder, participation in special education classes, and a
history of substance abuse. However, despite the testimony of
Dr. Fabian Saleh, a forensic psychiatrist called by the
defendant, "that he seriously doubted whether the defendant had
a clear understanding that he could voluntarily refuse to be
interviewed," the judge specifically found "that the defendant's
version of the police interview in Dr. Saleh's report [was] not
reliable or credible." In particular, the interview with Dr.
Saleh took place "more than a year after the defendant was
arrested and indicted and more than two years after the police
interview . . . at [a time when] the defendant had a powerful
incentive to make his police interview sound involuntary." The
judge noted that, "[w]hen the detectives asked to record the
interview, the defendant asserted himself and refused. The
detectives honored his refusal." Finally, throughout the
interview, the "defendant continued to insist that he was not
involved and that he did not see the attack. The defendant made
his statements not because of any lack of understanding or lack
of voluntariness but because he wanted to deny being involved in
the attack. . . . The defendant's will was not overborne."
11

our conclusion that the defendant was not in custody . . . , his

interview . . . was simply not governed by Miranda"). In

addition, the motion judge correctly ruled that Mitchell's

statement was made voluntarily, without coercion by the police.

See Commonwealth v. Tremblay, 460 Mass. at 207. See also

Commonwealth v. Sheriff, 425 Mass. 186, 192 (1997).

b. Pabon's statement. In brief, the motion judge found

the following facts as to Pabon's statement to police following

his arrest on March 1, 2008. That morning at 7:20 A.M., Boston

police officers arrested Pabon and transported him to police

headquarters. McLaughlin and Devane met with Pabon in an

interview room. At the outset, the detectives gave Pabon a

coffee and offered him an opportunity to make a telephone call.

Pabon deferred, indicating that he would wait to hear what the

detectives had to say. The detectives explained the process of

electronically recording an interview; Pabon agreed to talk with

the police, but he declined to have his statement recorded and

signed a form confirming that choice. McLaughlin then read

Pabon the complete Miranda warnings, showing him the police

department's warning and waiver form. After reading each

warning, McLaughlin asked Pabon if he understood. Pabon said he

did, and initialed each warning. Pabon was then eighteen years

old. He was alert and responsive to the detectives' questions.
12

Pabon reiterated that he had been truthful when he gave the

police an earlier statement at his home on June 19, 2007, with

his mother present, and he maintained that the stabbing of his

cousin, Jaleek Leary, had nothing to do with the events in

question. The detectives explained that there were different

degrees of the crime of murder and that they were interested in

where this particular case "fell in that spectrum" of possible

criminal offenses. They urged Pabon to be honest.

Pabon stated there were "a lot of people out on the street"

on May 22; he mentioned some of the individuals who were present

and denied witnessing the stabbing. Pabon further denied that

there had been a plan to fight the victim. Presented with the

surveillance video, Pabon stated it had been "stupid" for Jacobs

to go down to Wilcock Street. At 8:25 A.M., Pabon was allowed

to use the restroom. He drank Vitamin Water, obtained from a

vending machine. The detectives gave Pabon a snack. Pabon made

two telephone calls using his cellular telephone. His initial

call lost its connection; Pabon then spoke for several minutes

during his second telephone call.

When the interview resumed, the detectives showed Pabon

still images from the surveillance video. When the police

informed Pabon that they knew that the male in the video seen

wearing a green tank top and, later, a white polo shirt was him,

Pabon confirmed it was true. The detectives indicated to Pabon
13

that the photographs showed him as the first person to come upon

the victim on the sidewalk on Havelock Street. Pabon asked,

"[W]here's K-EZ?"6 The detectives said they knew where K-EZ was

but did not elaborate. Pabon then asked for an explanation of

the different degrees of murder. The detectives complied.

Pabon stated, "So I can't get manslaughter." Devane described

the theory behind joint venture by analogizing the concept to a

sports example (i.e., players of a football team all acting

toward a common aim or purpose).

At 8:57 A.M., Pabon stated that he would tell what really

happened on May 22. He indicated that he needed a cigarette,

and the police obtained one for him. Pabon asked the

detectives, "[H]ow did you track me?" This was followed up by

some questions as to who did what during the incident. Pabon

denied that he had ever put his hands on the victim. He denied

stabbing anyone. He did admit to having lied in the earlier

interview at his home and in the initial part of this

stationhouse interview. One detective reminded Pabon that

anything he said could be used against him, including

falsehoods. Pabon reiterated his desire to tell the truth but

refused to have the remainder of the interview recorded. He

indicated that he was too nervous to make a written statement.

Pabon recounted that he and the victim got into a fistfight on

6
Mitchell's nickname was "K-EZ."
14

Havelock Street. On an aerial photograph of the crime scene,

Pabon pointed to the spot where the fistfight had occurred,

identifying the sidewalk of Havelock Street, opposite Kay's

Oasis. This was the area where the victim was found lying

facedown with multiple stab wounds. Pabon said that he ran

behind the victim, but had not been chasing him. The victim hit

him in the face with a "good" punch, Pabon recalled, prompting

Pabon to "just quit." Pabon insisted he did not have a weapon

at the time. He denied stabbing the victim. The interview

ended at 10:00 A.M. (a span of some two hours and ten minutes).

Pabon argues that "the police inaccurately described the

law of murder and joint venture during the interrogation," and

that "their statements of the law coerced Pabon to speak, and to

believe that he could not 'get manslaughter.'" Not only does

Pabon fail to show how the detectives' admittedly colloquial

football team analogy was inaccurate or misleading but, also,

the cases he cites -- Lynumn v. Illinois, 372 U.S. 528 (1963),7

and Commonwealth v. Novo, 442 Mass. 262 (2004)8 -- are readily

7
In Lynumn, a police officer told the defendant that, if
she did not cooperate, she "could get 10 years and the children
could be taken away, and after [she] got out they would be taken
away and strangers would have them, . . . and [she] had better
do what they told [her] if [she] wanted to see [her] kids
again." 372 U.S. at 531.
8
In Novo, "[a]lthough the officers used a variety of
interrogation techniques, one that emerged approximately ninety
minutes into the interview was that this would be Novo's 'only
15

distinguishable and simply do not support his claim of error.

Again, in a thoughtful memorandum, the motion judge ruled that

Pabon's statements had been made voluntarily and that he had

made a knowing, intelligent, and voluntary waiver of his Miranda

rights. The judge rightly concluded that the detectives'

explanations respecting the different offenses of murder and

manslaughter and the different degrees of murder, as well as

their comments about the evidence, neither undermined Pabon's

Miranda waiver nor amounted to coercion so as to render the

statement involuntary as matter of law. We agree and conclude

that the judge correctly denied Pabon's motion to suppress the

statement he gave while in custody.

2. Youthful offender. Mitchell, who was sixteen years old

at the time the victim was killed, was tried and sentenced as an

adult in Superior Court. Like the defendant in Commonwealth v.

Okoro, 471 Mass. 51 (2015), he argues that the youthful offender

transfer scheme and statutory sentencing provisions are

opportunity' to offer an explanation for why he hit [the
victim]. Once introduced, this now-or-never theme persisted up
to and through Novo's confession. Soon after it was introduced,
[the police officer] explicitly linked it to Novo's rights to
testify and to present a defense when he told Novo, 'If you
don't give us a reason, Roy, if you don't give us a reason right
now why you did this, a jury's never going to hear a reason.'
Thereafter, [the officer] repeatedly conveyed the message that,
unless Novo offered a reason for injuring [the victim] during
the interview, he would not be able to offer any reason to a
jury at a subsequent criminal case." 442 Mass. at 267-268.
16

unconstitutional as applied to him.9 In his appellate brief,

Mitchell relies upon, inter alia, Miller v. Alabama, 132 S. Ct.

2455 (2012), and Diatchenko v. District Attorney for the Suffolk

Dist., 466 Mass. 655 (2013), for the proposition that the

statutory scheme is unconstitutional in particular because it

does not differentiate juvenile homicide offenders from adult

homicide offenders for purposes of sentencing.10 His argument is

foreclosed at the outset by his failure to raise it below.

However, even had he done so, his argument would fail in light

of the court's holding in Okoro. Okoro, which was released

after the briefs were filed in this appeal, addressed Mitchell's

argument precisely and rejected it. While acknowledging that

"certain language in Miller can be read to suggest that

individualized sentencing is required whenever juvenile homicide

offenders [face] a sentence of life in prison," 471 Mass. at 56,

the court nonetheless squarely held that the sentence of life

9
Pabon joins in Mitchell's argument. Pabon was seventeen
years old at the time of the murder in 2007. In 2010, at the
time of trial, the various statutes concerned with the trial and
sentencing of juveniles applied only to children who were under
the age of seventeen at the time of the offense. See
Commonwealth v. Okoro, 471 Mass. at 55 n.4.
10
Both Mitchell and Pabon were sentenced to life in prison
with a possibility of parole after fifteen years. See Okoro,
471 Mass. at 55 n.4. As to Pabon's complaint with respect to
his sentence, see ibid., discussing the various amendments to
the sentencing laws and their effect on persons aged seventeen
or eighteen years old at the time of the offense. See also
Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass.
at 661-667, holding that Miller will be applied retroactively.
17

imprisonment mandated by the Legislature under G. L. c. 265,

§ 2, and G. L. c. 119, § 72B, for a juvenile offender convicted

of the crime of murder in the second degree does not violate

either the Eighth Amendment to the United States Constitution or

art. 26 of the Massachusetts Declaration of Rights.11 Okoro, 471

Mass. at 58.

3. Admission of Goode's redacted statement. Goode's

statement to the police was redacted to exclude any reference to

his co-defendants in order for it to be used against him in the

joint trial. Both at the time the redacted statement was

admitted and in the final charge, the judge instructed the jury

that Goode's statement must be considered solely as evidence in

the case against him, and not against his codefendants.

a. Bruton. In line with their objections raised during

the trial, Mitchell, Pabon, and Ortiz now contend that the

admission of Goode's redacted statement is at odds with the

teaching of Bruton v. United States, 391 U.S. 123, 137 (1968).12

11
Mitchell's counsel agreed at oral argument that the
teaching of Okoro is controlling here.
12
Mitchell objects specifically to Goode's statement (as
recounted by Detective McLaughlin) that "he himself never shot
or stabbed anyone, but that two people stabbed the victim. All
the while, Goode was trying to stop them." Mitchell also
challenges Goode's statement that "[t]hat dude wasn't supposed
to die."

Pabon objects to the admission of Goode's statement
indicating that "'someone' had problems stemming from a beating
18

Bruton held that the admission, at a joint trial, of a non-

testifying codefendant's earlier statement, naming and directly

incriminating another defendant, violates a defendant's right to

confront his accusers under the Sixth Amendment to the United

States Constitution. See Gray v. Maryland, 523 U.S. 185, 196-

197 (1998); Commonwealth v. James, 424 Mass. 770, 782 (1997);

Commonwealth v. Vasquez, 462 Mass. 827, 841 (2012); Commonwealth

v. Rivera, 464 Mass. 56, 69 (2013). In the defendants' view,

their cases ought to have been severed. We review the denial of

a motion for severance for an abuse of discretion. Commonwealth

v. Rivera, supra at 71.

Here, there was no Bruton violation because Goode's

redacted statement did not name expressly, implicate, or

obviously refer to the codefendants so as to be "facially"

that 'that person' took at the Woodrow Wilson School[; and]
. . . at the very beginning of the incident . . . [the victim]
and 'someone else' had squared off and were 'ready to go' in a
fight." In Pabon's view, his own statement (that he had
suffered a beating sometime earlier at the Woodrow Wilson
School; that he had gone "toe-to-toe" with the victim in a fair
fight, and that he had chased the victim), combined with Goode's
redacted statement, "clearly inculpated Pabon as both . . . the
person [with the problem] at the Woodrow Wilson School and . . .
the person who initially squared off to fight the victim."

Ortiz's objection relates to what he perceives as the
unfair sanitizing of Goode's statement, leaving Ortiz as a
possible offender, once Mitchell's and Pabon's names were
redacted. He also objects to the fact that a portion of Goode's
statement actually exculpated Ortiz but was excluded as hearsay
("[The detective] asked him about Pedro's involvement and he
stated, 'Pedro didn't stab him. I didn't see "P" [Pedro] hit
the kid'"). We address that argument infra.
19

incriminating. Gray v. Maryland, 523 U.S. at 196-197. Nor were

any of the three defendants necessarily inculpated by inference

from the Goode statement itself, particularly given the

admittedly large number of individuals present on Wilcock and

Havelock Streets that evening. See Commonwealth v. Vasquez, 462

Mass. at 843-844, and cases cited ("There were six participants

in the killing, and [the codefendant's] use of the phrase 'other

members' does not necessarily encompass everyone else [including

(the defendant)], as for instance the phrase 'all the other

members' might connote. . . . The phrase 'other members'

signifies only some other members, without specifying who or how

many. Unlike Bruton and Gray, where there were only two

perpetrators and it was immediately apparent to the jury that

the codefendant's confession, redacted or not, referred directly

to the defendant [Bruton and Gray, respectively], [the

codefendant's] statement cannot be understood to refer directly

to [the defendant]. [The codefendant's] statement alone does

not support an inference that [the codefendant] was referring to

[the defendant]. Other evidence was required to link [the

defendant] to the crime, and it did"). Contrast Commonwealth v.

Bacigalupo, 455 Mass. 485, 493 (2009) (where the witness

recounting the codefendant's confession referred to the

defendant as the codefendant's "friend," the court concluded

that the reference to the "'friend' suggested to the jury that
20

[the codefendant] was referring to the defendant. This

implication was strengthened by the fact that only two people

were on trial for the shootings that [the codefendant] said were

committed by himself and a 'friend.'").

This case is easily distinguished from Bacigalupo. Here,

the redacted statement could be considered incriminating, if at

all, only when taken in context with other evidence admitted at

the joint trial. The law is clear that "inferential

incrimination can be properly cured by a limiting instruction,"

which the trial judge timely and forcefully delivered here.

Rivera, 464 Mass. at 70. We see no error.

b. Verbal completeness. Nor was there a violation of the

common-law rule of verbal completeness, as the defendants have

argued.13 For other portions of a redacted statement to be

admissible under the rule of verbal completeness, the additional

text must be "(1) on the same subject as the admitted statement;

(2) part of the same conversation as the admitted statement; and

(3) necessary to the understanding of the admitted statement"

(emphasis omitted). Commonwealth v. Clark, 432 Mass. 1, 14

(2000).

13
It is not clear precisely what Pabon's argument on verbal
completeness entails as his brief merely adopts Ortiz's argument
-- which was, on this issue, only that Goode's statement
exculpating Ortiz was wrongly redacted.
21

In this case, Goode's statement was redacted to remove not

only the names of those Goode inculpated, but also that portion

of Goode's statement exculpating Ortiz (see note 12, supra).

This presents an unusual circumstance. Although the statement

was admitted only against Goode, it is not just the affirmative

statement but the implication of the redaction of the

exculpatory portion that, Ortiz argues, left the impression that

Ortiz might have been one of the people Goode implicated when in

fact Goode did not do so. And, although it is true that the

portion of the statement exculpating Ortiz was hearsay -- and no

part of the statement would have been admitted had Ortiz been

tried alone -- the admission of the inculpatory portion without

the admission of the exculpatory portion, Ortiz argues, created

in this case the misimpression that Goode might have inculpated

Ortiz.

Nonetheless, even assuming what we do not decide -- that,

when combined with the required redactions of the names of those

inculpated, the redaction of the portion of Goode's statement

exculpating Ortiz violated the doctrine of verbal completeness

or was otherwise unfair to Ortiz -- we think any error was cured

by the judge's forceful and repeated instructions that a

statement by any of the defendants was to be considered only

with respect to that defendant, not with respect to any of the

other defendants. In Commonwealth v. Keevan, 400 Mass. 557, 570
22

(1987), the Supreme Judicial Court held that "absent any direct

inculpation, an appropriate instruction is sufficient to obviate

Bruton concerns," and we think the same is true with respect to

the type of error claimed here.

4. Admission of Pabon's redacted statement to police.

Based on Bruton and the verbal completeness rule, Ortiz and

Mitchell also assert error in the admission of Pabon's taped

(albeit redacted) statement to the police at his home on June

19, 2007. Mitchell argues that Pabon's comment ("Markeese

wasn't with us"), which was excised from the admitted statement,

was unfairly suppressed.

Ortiz concedes that Pabon's redacted statements "were not

as unfair to" Ortiz's own defense as was Goode's statement.14

However, he points out that Pabon had indicated to the police

that he had no knowledge of Ortiz's involvement in the incident,

just as he had no knowledge of other named uncharged

individuals, so that the jury ought to have heard that Ortiz was

classified by Pabon in the "I don't know" category rather than

14
The redacted statement was as follows:

"Pabon was asked specifically about several people . . .
'Ace -- I don't know; Mills -- heard he was locked up last
night; and Pudge -- I don't know.'"

In the original statement, Pabon had also stated, "K-EZ --
you got him; . . . Pedro [i.e., Ortiz] -- I don't know; . . . PJ
-- heard he was locked up last night."
23

the "you [i.e., the police] got him" classification, which

included Mitchell.

Both Mitchell's and Ortiz's arguments fail for the same

reason that the objections to Goode's statements fail.

Moreover, it does not appear to have been possible to amend

Pabon's statements in such a way that both satisfied Bruton and

met the demands of Ortiz and Mitchell for verbal completeness.

See Commonwealth v. Rivera, 464 Mass. at 71.

5. Evidentiary rulings. a. Admission of Pabon's denials.

Pabon claims error in the admission of his denials of

culpability contained in his first (June 19, 2007) police

statement, admitted at trial, and in McLaughlin's testimony

about Pabon's second statement (custodial interrogation on March

1, 2008). He argues that he was prejudiced by the fact that the

jury heard his denials of various accusations posed by the

police. The claim lacks merit. It is clear that Pabon's

extrajudicial statements, made during both exchanges with the

detectives, were neither absolute nor unequivocal denials and,

surely, had ample probative value that outweighed any possible

prejudice to him. See Commonwealth v. Spencer, 465 Mass. 32, 47

(2013). There was no abuse of discretion in admitting this

evidence.

b. Pabon's two knives found at arrest. At the time of

Pabon's arrest, the police found that he possessed two knives.
24

The trial judge allowed McLaughlin to testify that, in Pabon's

postarrest statement, Pabon was asked why he had two knives and

Pabon responded that he had never stabbed anyone and it was

better than carrying a gun. Pabon argues that the admission of

this evidence was error. We disagree. The two knives, in his

possession at the time of his arrest, were "relevant to show

that [Pabon] had the means of committing the offense."

Commonwealth v. James, 424 Mass. 770, 779 (1997). It clearly

was within the judge's discretion to admit knives in the

defendant's possession that could have been used in the murder.

See Commonwealth v. Rosa, 468 Mass. 231, 237-238 (2014). See

also Commonwealth v. Daye, 435 Mass. 463, 474-475 (2001)

("Subject to the discretion of the judge, 'it is commonly

competent to show the possession by a defendant of an instrument

capable of being used in the commission of the crime, without

direct proof that that particular instrument was in fact the one

used.' Commonwealth v. Toro, 395 Mass. 354, 356 [1985], quoting

Commonwealth v. O'Toole, 326 Mass. 35, 39 [1950]").

c. Evidence about the investigation. Citing Commonwealth

v. Stuckich, 450 Mass. 449 (2008), the defendants also argue

that the prosecutor improperly elicited testimony from

McLaughlin about the nature of the police investigation that

resulted in the arrest of the defendants only and not other

individuals who may have been present. This argument is
25

misplaced for at least two reasons. First, throughout the

trial, the defense vigorously attacked the adequacy of the

police investigation, placing the investigation clearly at

issue. See Commonwealth v. Arana, 453 Mass. 214, 226-227

(2009). In addition, the court's concern in Stuckich, a rape

and indecent assault and battery case, was that "[t]he fact that

the Commonwealth brought its resources to bear on this incident

create[d] the imprimatur of official belief in the [alleged rape

victim]. It is unnecessary and irrelevant to the issue of the

defendant's guilt." 450 Mass. at 457. No similar

considerations apply in this case, where the fact that the

victim was murdered was not contested.

The defendants' argument that the prosecutor should not

have been permitted to elicit testimony that some of the

witnesses were reluctant to testify and that one witness

testified on redirect examination that she was "scared" also

fails. See Commonwealth v. Fitzgerald, 376 Mass. 402, 411

(1978) ("[I]n general, questions and arguments concerning a

witness's fear in testifying are not improper per se. They

would be improper only if there were some ground, other than

that they dealt with fear, for finding impropriety"). See also

Commonwealth v. Auguste, 418 Mass. 643, 647 (1994).

6. Prosecutor's closing argument. The defendants assign

as error certain remarks that the prosecutor made in his closing
26

argument to the jury. Specifically, Ortiz argues that the

prosecutor improperly argued that the Commonwealth witnesses

"were credible because they had been reluctant to appear or to

identify the defendants out of fear." In fact, that portion of

the prosecutor's argument was offered in the permissible context

of asking the rhetorical question, "What possible motive does

[the witness] have to come in here and lie to you?" "A

prosecutor can address, in a closing argument, a witness's

demeanor, motive for testifying, and believability, provided

that such remarks are based on the evidence, or fair inferences

drawn from it, and are not based on the prosecutor's personal

beliefs. . . . When credibility is an issue before the jury,

'it is certainly proper for counsel to argue from the evidence

why a witness should be believed.' Commonwealth v. Raymond, 424

Mass. 382, 391 (1997), quoting Commonwealth v. Thomas, 401 Mass.

109, 116 (1987)." Commonwealth v. Freeman, 430 Mass. 111, 118-

119 (1999). Moreover, as discussed supra, a witness's fear

about testifying is properly admitted on the issue of the

witness's credibility.

Ortiz and Pabon also argue that the prosecutor's statement,

"So they waited and they waited until he got out, and until he

was brought to Havelock Street, and then, and only then did they

exact their revenge upon him," was based on a fact not in

evidence. In support, they note that the date the victim was
27

released from custody after being arrested for slashing Jaleek

Leary was not in evidence. However, as the Commonwealth

responds, the argument that the opportunity for revenge arose at

the moment when the victim was brought to the Wilcock/Havelock

Street area clearly was supported by the evidence -- and that

event obviously occurred after the victim had been released from

custody, whenever the release occurred.

Mitchell contends that the prosecutor's argument that

Mitchell said, as he wiped the knife on the pole, "That's what

he gets," was not supported by the evidence. However, the

prosecutor's statement was supported by the fact that at least

one witness identified Mitchell as the person who wiped the

blood on the street pole ("And I seen Markeese walking past my

house and Markeese was wiping the blood on a pole"). At another

point, the same witness testified that soon afterwards Mitchell

and another individual walked away and she heard one of them --

she couldn't remember which -- say, "[T]hat's what you get."

Another witness testified that Mitchell walked away from the

scene alone, carrying a knife, and then "wiped the blood on the

pole." Even if the prosecutor's inference was strained -- i.e.,

that it was a leap to conclude that it was Mitchell who said,

"That's what you get" after wiping the blood -- such a

misstatement cannot be said to have created a substantial risk

of a miscarriage of justice here.
28

Mitchell also argues that the prosecutor impermissibly

argued, without a basis in evidence, that the case was "about

revenge and retaliation . . . and these four defendants'

conscious and deliberate decisions on May 22 of 2007 . . . to

get Terrance Jacobs up to Havelock Street, to get him back for

stabbing their friend and relative Jaleek Leary." In fact, the

evidence supported the argument that there was a plan to "get

back" at the victim for slashing Leary. Moreover, the

prosecutor did not argue that the plan at the outset was to

murder him.

Finally, Ortiz, Pabon, and Mitchell all challenge the

prosecutor's argument that "all the defendants armed themselves

with knives in anticipation of confronting Terrance Jacobs." In

fact, because there was evidence that each of the four

defendants stabbed the victim, the statement that each armed

himself with a knife was supported in the evidence. To the

extent that the wording of the prosecutor's argument implied

that there were at least four knives and that each defendant

began the confrontation with a knife, that conclusion is not

unreasonable given the speed with which the confrontation

escalated and the number of times the victim was stabbed.

Moreover, even if the inference that each defendant had a knife

at the beginning of the confrontation is not fully supported,
29

that variation is not material and cannot be said to have

created a substantial risk of a miscarriage of justice.

"Where, as here, the defendant[s] did not object to these

closing argument statements at trial, we determine whether the

statements created a substantial likelihood of a miscarriage of

justice that requires a new trial." Commonwealth v. Penn, 472

Mass. 610, 626 (2015).15 "In determining whether an argument was

improper, we examine the remarks 'in the context of the entire

argument, and in light of the judge's instructions to the jury

and the evidence at trial.' Commonwealth v. Gaynor, 443 Mass.

245, 273 (2005), quoting Commonwealth v. Viriyahiranpaiboon, 412

Mass. 224, 231 (1992)." Commonwealth v. Miller, 457 Mass. 69,

79 (2010). We have carefully reviewed the defendants'

contentions and the transcript of the prosecutor's closing. We

see no error, and certainly no substantial risk of a miscarriage

of justice. "A 'prosecutor is entitled to argue the evidence

and fair inferences to be drawn therefrom.' Commonwealth v.

Paradise, 405 Mass. 141, 152 (1989)." Commonwealth v. Deane,

458 Mass. 43, 55-56 (2010). Finally, we have in mind the

judge's instruction to the jury that "[t]he opening statements

and the closing arguments of the lawyers are not evidence . . .

15
Two of the defendants did object to other statements in
the prosecutor's closing argument. They do not argue those
issues on appeal.
30

if anything they said about the evidence differs from your

memory of the evidence, it is your memory that controls."

7. Proposed instructions on withdrawal from joint venture.

The trial judge correctly refused the defendants' request to

charge the jury on the subject of withdrawal from a joint

venture.16 To advance a theory of abandonment or withdrawal from

a criminal joint venture, Massachusetts law requires that "there

must be 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." Commonwealth v. Rivera, 464

Mass. 56, 74 (2013), quoting from Commonwealth v. Miranda, 458

Mass. 100, 118 (2010). None of the defendants was entitled to

an instruction as to joint venture withdrawal because there was

no evidence to support such a hypothesis. Contrast Commonwealth

v. Allen, 430 Mass. 252, 257-258 (1999).

8. Fidler motion. The defendants argue that they

presented a colorable claim that a juror was biased and that the

trial judge erred when she denied their motion for an

opportunity to question the juror. See Commonwealth v. Fidler,

16
Ortiz also objects to the giving of a joint venture
instruction pursuant to Commonwealth v. Zanetti, 454 Mass. 449
(2009). We see no error.
31

377 Mass. 192 (1979). After holding an evidentiary hearing, the

trial judge denied the motion in a ten-page decision, recounting

the facts in considerable detail, along with her reasons for

crediting parts of Ortiz's hearing testimony and discrediting

other parts. The basis for the motion apparently was a

suspicion that one juror might have been related to an

individual with whom Ortiz was incarcerated; Ortiz had

concluded, from the individual's hostility to Ortiz, that the

individual was associated with a gang "that ha[d] an alliance

with" the victim's gang. In addition, the juror might have

attended high school with an aunt of the victim. The juror also

lived within a mile of the incident, a fact she disclosed before

she was empanelled. The defendants presented no witnesses with

any personal knowledge of any of the suspected associations.

The judge concluded that the defendants had failed to make

a "colorable showing" of either extraneous influence or bias on

the part of the juror in question. We agree. An impartial jury

is, without question or doubt, fundamental to an accused's right

to a fair trial. A balancing principle, however, is that the

questioning of a juror, postverdict, is a "sensitive undertaking

and is fraught with potential for error." Commonwealth v.

Connor, 392 Mass. 838, 843 (1984). In the end, "[a] trial judge

has 'broad discretion "to determine what manner of hearing, if

any, is warranted."' Commonwealth v. Dixon, 395 Mass. 149, 151
32

(1985), quoting United States v. Campbell, 684 F.2d 141, 151

(D.C. Cir. 1982). 'No duty to investigate arises unless the

court finds some suggestion or showing that extraneous matters

were brought into the jury's deliberations.' Commonwealth v.

Dixon, supra, citing Commonwealth v. Fidler, 377 Mass. 192, 203

(1979). The party seeking the inquiry must show more than mere

speculation. Commonwealth v. Dixon, supra at 152."

Commonwealth v. Rivera, 464 Mass. at 80-81. We see no abuse of

discretion.

We affirm the judgments and the order denying the

defendants' postconviction motion.17

So ordered.

17
We have carefully considered each of the arguments
presented in the defendants' briefs. To the extent that any
particular claim has not been addressed specifically herein, we
have found it to be without merit. See Commonwealth v.
Domanski, 332 Mass. 66, 78 (1954).