NOTICE: All slip opinions and orders are subject to formal

revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108

- 1750; (617) 557

- 1030; SJCReporter@sjc.state.ma.us
SJC

- 1 2631
COMMONWEALTH vs . DANIEL T AVARES .

Bristol. January 6, 2020.

- May 6 , 2020. Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

Homicide
. Practice, Criminal , Capital case, Request for jury instructions, Motion for a required finding.

I ndictments found and returned in the Superior Cour t Department on March 28, 2013. The case was tried before Gary A. Nickerson , J.

Theodore F. Riordan ( Deborah Bates Riordan also present) for the defendant. Mary E. Lee , Assistant District Attorney, for the Commonwealth.

L OWY , J . I n December 2015, a jury convicted the defendant , Daniel Tavares, of murder in the first d egree on theories of deliberate premeditation and extreme atrocity or cruelty , for the 1988 stabbing death of Gayle B o telho
. The judge sen tenced2

the defendant to life in prison. 1 On appeal, the defendant seeks reversal of his conviction , arguing that the trial judge erred by denying (1) his requests for a jury instruction pursuant to Commonwealth v. Croft , 345 Mass. 143, 145 (1962); and (2) his motions for a required finding of not guilty because the evidence equally supported two inconsistent propositions, as prohibited by Croft
. The defendant also requests that we exercise our power pursuant to G. L. c. 278, § 33E , to redu ce his conviction to manslaughter. Finding neither reversible error nor reason to exercise our authority under § 33E, we affirm. Background
. We recite the evidence in the light most favorable to the Commonwealth, reserving certain details for
later discussion. See Commonwealth v. Rodriguez , 456 Mass. 578, 579 (2010). The victim went missing on or about October 27, 1988
. At the time of her disappe arance, the victim lived on Prospect Street in Fall River with her boyfriend, Carlos DaPonte, and his b rother, Gil DaPonte. 2 The defendant lived across the street with his mother, and as relevant here, his mother's friend, Richard Pires. Neither the defendant nor

1 The judge ordered that the defendant serve his sentence from and after the sentence imposed by the State of Washington in or around 2007 , as discussed infra
.

2 Because they share a last na me, we refer to Carlos and Gil individually by their first names and collectively as the DaPontes .3

anybody else was arrested in connection with the victim's disappearance, until the defendant was charged in 2012
. 1
. The defendant's first version of events . In 1991, the defendant killed his mother and ple aded guilty to manslaughter
. He was sentenced to from seventeen to twenty years in S tate prison. In September 2000, while incarcerated, the defendant
wrote to a Bristol County a ssistant d istrict a ttorney , claiming to know the location of a murder victim's body, which he would disclose, along with other relevant information , in exchange for a reduced sentence. 3 During a series of interviews that took place over the subsequent months, the defendant told Detective John McDonald the following details about the night the victim
was murdered: t he victim , Carlos , Gil , and their friend, Raymond Paiva , were all at the defendant's house with the
defendant . The defendant gave Carlos some cocaine to sell and Carlos left. The defendant then stepped outside to speak to his girlfriend, Michelle Cardoza , for about ten to fifteen minutes
. When the defendant retur ned to his bedroom, he saw Gil holding a knife and the victim on the floor with stab wounds to her back
. The defendant further stated that he was not present during the stabbing
.

3 The defendant was not paroled, nor was his sentence reduced in exchange for any information given to police. Th e defendant also told police that he had contacted them because he had found God and wanted to clear his conscience
.4

When the defe ndant asked what had happened, Gil confessed to stabbing the victim , and t he defendant announced he w as going to call for help. Gil then pulled out a handgun, put it to the defendant's head, and fired a round, which grazed the defendant's forehead. T he defendant then said h e had to leave to pick up Cardoza , and he instructed Gil and Paiva to remove the victim's body
. When the defendant returned approximately twenty minutes later , he saw Gil and Paiva carrying the victim's body , wrapped in a blanket , down the stairs and into the back yard
. 4 Later, Gil and Paiva pointed to an area of the back yard and told the defendant that that was where they had buried the victim's body. The defendant had been clearing that area for a tomato garden , and he suspected that that was where Gil and Paiva bu ried the body. 5
2
. The initial investigation
. After two interview s with the defendant , in October 2000, the police went to the
defendant's former house on June Street. In the defendant's bedroom , they found a bloodstained section of floor
. In the back yard, the police recovered a human skeleton and positively

4 The defendant also told police that b ecause Cardoza saw Gil and Paiva carrying the victim, the defendant explained to her that the victim had been hurt.

5 After this meeting with the defendant, Detective McDonald met with Cardoza , who confirmed the defendant's version of events.5

identified the remains as those of the victim
. The autopsy concluded that the cause of death was homicidal violence including stabbing to the victim's back. Shortly thereafter , Lori Moniz , the d efendant's former girlfriend, saw a news report that a body had been discovered in
the defendant's back yard
. She contacted the police. A t a subsequent meeting, she reported that , on an evening in late October 1988, the defendant had telephoned and told her to come to his house because he wanted to show her something. When Moniz arrived , the defendant answered the door, appearing nervous and excited. Moniz followed the defendant upstairs to his bedroom and, as she approached, she saw the defen dant on his hands and knees scrubbing what appeared to be a large pool of blood from the rug . Upon seeing this, Moniz rushed down the stairs to leave . The defendant ran after her , explain ing that the blood was fake and a joke for Halloween
. 3
. The defendant's s econd version of events . In 2002, the defendant changed his story : The defendant stated that he witness ed Gil stab and murder the victim and that Cardoza was
not there that night
. In 2002, Cardoza also told Detective McDonald that , at the d efendant's request, she had lied about being with the defendant on the night of the murder. The Commonwealth did not charge the defendant with the victim's murder at this point.6

4
. Further investigation . In 2007, the defendant completed his sentence for his mother's homicide, and within days of his release from prison , he moved to the State of Washington . Shortly thereafter, the defendant killed two people . While incarcerated in Washington, the defendant learned
of a book that discussed the victim 's murder , including the defendant's cooperation with the police. In 2012, another individual incarcerated in the same Washington prison as the defendant told the Fall River p olice d epartment that he had discovered an open letter, written o n the cover of a book in the prison library , in which the author, later confirmed to be the defendant, refuted the notion that the defendant had cooperated with police and , instead, asserted that he was the only suspect in the victim's murder case , not a "rat
. " 5
. The defendant's 2012 confession . In November 2012, Detective McDonald traveled to Washington to meet with the
defendant , at which point , the defendant changed his story again
. The defendant stated that he alone murdered the victim (2012 confession)
. In this version, the defendant was angry with the victim, the DaPontes , and Paiva for stealing cocaine from him , and he planned to k ill all of them in retaliation for the theft . On the day of the murder, he walked across the
street to the victim's house , and the victim answered the door
. T he defendant asked if Carlos was home , but he was not. The7

defendant told the victim that he knew all four of them had stolen from him and that he wanted them to start selling cocaine for him to repay their debt . The d efendant then invited the victim across the street to retrieve some cocaine from his house . Upon entering his bedroom, the defendant laid out a line of cocaine for the victim . While the victim bent over to ingest the line , t he defendant took a handgun and tried to shoot her , but the slide on the gun jammed. T he defendant then reached for a knife that was on his bureau and stabbed the victim seven or eight times. The victim fell , and her blood soaked the floor
. T he defendant then moved the victim's bo dy to the back yard, removed the victim's clothes, and buried the victim's body , face down, in the back yard . The defendant told Detective McDonald that he would not have confessed if not for the book that had been written , because he refused to be known as a " rat. " 6
I n February 2013, the defendant confessed three more times in writing to (1) his former roommate, Richard Pires ;

6 The defendant also said that he accused Gil and Paiva of the murder because they benefited from the stolen cocaine , so b y pinning it on them, he could kill two birds with one stone
.8

(2) Detective McDonald ; 7 and (3) his former false alibi witness , 8
Cardoza. A grand jury indicted the defendant for the victim's murder in 2013 , and t he jury trial began on November 16 , 2015
. At trial, the defendant argued that he gave a false confe ssion to avoid being labeled a " rat " in prison. He called an expert witness who t estified to the dangers of being considered a " rat " within the prison system
. The jury convicted the defendant. Discussion . 1. Jury instruction
. On appeal, the defendant argues the judge erred in denying the defendant's request s for a jury instru ction pursuant to Croft , 345 Mass. at 145
. 9 Because the defendant preserved this issue at trial, we

7 The defendant had kept in contact with Pires while incarcerated in Massachusetts and in Washington. Pires testified that the defendant wrote to him on a somewhat regular basis.
T he defendant told Pires that he had to "take them out" because " Carlos and his girl stole something from [him] that was not [his]" and that he "did [the crime] alone. " The defendant also said that he confessed to Lori Moniz and a woman who lived across the street. In the letter to Detective McDonald , the defendant wrote , "I acted alone and that's that ." The defendant reiterated to both of them that he came clean because the book that had been written about the murder made him look like a "rat."

8 Also in February 2013, the defendant wrote Cardoza , admitting that he had asked her to l ie for him and told her not to lie for him anymore.

9 The defendant's requested jury instruction was modified from the language in Croft . The requested instruction stated , "Where the evidence tends equally to sustain either of two9

review for prejudicial error. See Commonwealth v. Cruz , 445 Mass. 589, 591 (2005). We have long up held the principle articulated in Croft that "[w]hen th e evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof." Croft , 345 Mass. at 145, quoting Commonwealth v. O'Brien , 305 Mass. 393, 400 (1940). See Commonwealth v. Kelly , 470 Mass. 682, 693

- 694 (2015)
. Our deci s ion in Croft doe s not provid e for a jury instruction , and we have never interpreted it as such
. 10 Indeed , we previously held that "a reference to the consequences of an even balance in the evidence prefer ably should not be included in a charge on
reasonable doubt , " Commonwealth v. Hunt , 462 Mass. 807, 825

- 826 (2012), quoting Commonwealth v. Beverly , 389 Mass. 866, 872

- 873 (1983) , because such an instruction may lead the jury to improperly infer that if the balance is weighted even slightly

inconsistent propositions, neither of them can be said to have established guilt beyond a reasonable doubt. In such a case, the evidence is insufficient to sustain the burden of proof imposed upon the Commonwealth." See Croft , 345 Mass. at 145.

10 E ven the cases to which t he defendant cites in his brief do not mention Croft in the context of a jury instruction
. Rather , they discuss the circumstances in which the trial judge should have granted the defendant's motion for a required finding of not guilty. See Commonw ealth v. Rivera , 460 Mass. 139, 144 (2011) (judge erred in denying defendant's motion for required finding of not guilty); Croft , 345 Mass. at 145 (same). See Rodriguez , 456 Mass. at 582

- 583 ( insufficient evidence to support convictions ).10

in favor of the defendant's guilt, the jury would be required to find the defendant guilty , s ee Commonwealth v. Saladin , 73 Mass. App. Ct. 416, 419 (2008). Instead, the principle articulated in Croft provides a standard for judges to apply when considering a motion for a required finding of not guilty and for appellate courts to apply when reviewing the sufficiency of the evidence
. There was no

error. 3. Required finding of not guilty under Croft
. The defendant also argues that the judge erred in denying his motions for a required finding of not guilty both at the close of the Commonwealth's case and at the close of all of the evidence
. We review to determine " whether, after viewing the evidence in the light most favorable to the prosecution , any rational trier of fact could have found the essential element s of the crime beyond a reasonable doubt
. " Commonwealth v. Cole , 473 Mass. 317, 33 4 (2015) , overruled on another ground, Commonwealth v. Wardsworth , 482 Mass. 454(2019), quoting Commonwealth v. Latimore , 378 Mass. 671, 677 (1979). Citing Croft , the defendant argues that because t he Commonwealth based its entire case on the defendant's 2012 confession , the whole of the evidence supports two inconsistent propositions: (1) the 2012 confession w as truthful and he murdered the victim or (2) the 2012 confession was untruthful11

and was an effort to avoid being labeled a "rat" while serving

sen tences in prison . The defendant further argues that because the evidence equally supports both propositions, the judge erred in denying the defendant's motions for a required finding of not guilty
. See Croft , 345 Mass. at 145. The defendant is correct
that Croft requires a judge to grant a defendant's motion for a required finding of not guilty when "the evidence tends equally to sustain either of two inconsistent propositions " (citation omitted). Id
. That is not this case.
T h is principle applies only in circumstances in which, even viewing the evidence in the light most favorable to the Commonwealth, "choosing among the possible inferences from the evidence presented, " would require a jury " to employ conjecture." Id . at 145 (evidence equally supported inference that defendant possessed heroin with intent to sell it and inference that defendant possessed heroin until he was certain
he had defeated his habit)
. See Rodriguez , 456 Mass. at 582

- 583 (evidence equally supported inconsistent inferences that buyer either obtained cocaine from third person or from defendant);
Commonwealth v. Eramo , 377 Mass. 912, 913 (1979) (evidence equally supported inconsistent inferences that defendant either issued prescription due to his indep endent medical judgment or pursuant to request without legitimate medical purpose)
. However, "it is for the jury to determine where the truth lies,12

for the weight and credibility of the evidence is wholly within their province." Cole , 47 3 Mass. at 334 , quoting Commonwealth

v. Lao , 443 Mass. 770, 779 (2005 ) , S . C . , 450 Mass. 215 (2007) and 460 Mass. 12 (2011)
. See Commonwealth v. Merry , 453 Mass. 653, 662 (2009) (jury not required to believe testimony of defendant's expert) ; Commonwealth v. Clifford , 37 4 Mass. 293, 297 (1978) (jury not required to disbelieve witnesses' testimony placing defendant at scene of crime )
. The likelihood of the defendant's 2012 confession being truthful or being untruthful are not in equipoise
. The weight
of the Commonwealth's evidence in this case , moreover, was overwhelming and , contrary to the defendant's arguments, included much more than just the defendant's 2012 confession to Detective McDonald
. See Commonwealth v. Weaver , 474 Mass. 787, 791 (2016), aff'd 1 37 S. Ct. 1899 (2017), citing Commonwealth v. Forde , 392 Mass. 453, 458 (1984)
. The victim's body was burie d in the defendant's back yard. The police found dried blood in
the defendant's bedroom. It was reasonable for the jury to conclude that, j ust hou rs after the murder , the defendant's former girlfriend saw the defendant cleaning up a pool of blood in the very same bedroom . On e of the defendant's then roommates observed blood on the defendant' s shirt in the washing machine , a pool of blood on the basement floor , and a pitchfork and
shovel also in the basement near the door le a d ing to the back1 3

yard. The roommate had never seen the pitchfork and shovel in that location before. In addition to the 2012 confession to police , the defendant sepa rately confessed to Pires and to Cardoza , 11 and the Commonwealth put forth ample evidence corroborating the defendant's confessions
. 12 T he jury were free, but not required, to believe that the defendant truthfully confessed to murdering the victim. 13 See Merry , 453 Mass. at 662. Moreover, e ven without the defendant's explicit confession
to the murder , the defendant does not contest the statements he made to police in 2000 and 2002
. He also admitted , without recantation , that he knew the victim ; that he w as angry with her for stealing cocaine from him ; that the victim was murdered in his bedroom ; and that he knew where the victim's body was

11 The defendant also confessed to Detective McDonald a second time in writing.

12 The defendant confessed to Pires that the defendant cut out a section of his rug , and Pires testified that he had observed the same. The defendant confessed that he stabbed the victim sev en or eight times, removed the victim's clothes, and buried the victim's body face down, three facts that were never publicly disclosed
.

13 The defendant's recitation of facts that contradict his confessions are of no moment, as we view the evidence in th e light most favorable to the Commonwealth when reviewing the sufficiency of the evidence
. See Cole , 473 Mass. at 334 ("Here, the defendant has marshaled the evidence, or the purported lack thereof, in the light most favorable to himself. This is not the proper lens through which to view the evidence "); Merry , 453 Mass. at 662 ("That contradictory evidence exists is not a sufficient basis for granting a motion for a required finding of not guilty").14

buried
. We conclude that, viewing the evidence in the light most favorable to the Commonwealth, a rational jury could have found that the defendant was guilty of murder in the first degree on both the theories of premeditation and extreme atrocity or cruelty. 4. Review under G. L. c. 278, § 33E . We have reviewed the entire record pursuant to our responsibilities under G. L.

c. 278, § 33E. We conclude that there is no basis for reducing the defendant's sentence or ordering a new trial. The defendant's conviction is affirmed.
So ordered
.