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SJC-11574

COMMONWEALTH vs. ARIEL HERNANDEZ.

Middlesex. October 9, 2015. - December 29, 2015.

Present: Gants, C.J., Spina, Botsford, Lenk, & Hines, JJ.

Homicide. Robbery. Armed Home Invasion. Home Invasion. 

Firearms. Felony-Murder Rule. Evidence, Firearm.

Constitutional Law, Search and seizure, Probable cause.

Probable Cause. Search and Seizure, Motor vehicle, 

Probable cause, Inevitable discovery. Practice, Criminal, 

Capital case, Motion to suppress, Severance, Trial of 

indictments together.

Indictments found and returned in the Superior Court 

Department on December 10 and 22, 2009.

A pretrial motion to suppress evidence was heard by Thomas 

P. Billings, J., and the cases were tried before him.

Dana Alan Curhan for the defendant.

Casey E. Silvia, Assistant District Attorney, for the 

Commonwealth.

HINES, J. Based on an armed robbery that occurred during 

the evening of October 22, 2009, and an armed home invasion and 

double murder that occurred several hours later, a jury 
2

convicted on indictments charging the defendant with two counts 

of armed robbery; two counts of murder in the first degree on 

the theory of felony-murder (with armed home invasion and 

attempted armed robbery as the underlying felonies); and one 

count each of home invasion, unlawful possession of ammunition, 

and possessing a firearm without a license. The defendant's 

trial was joined with the trials of two codefendants, cousins 

Karon and Jamal McDougal,1 on each of their indictments charging 

two counts of felony murder and one count of home invasion, and

with Jamal's indictments for firearms offenses. Karon and Jamal 

were acquitted of all charges. On appeal, the defendant argues 

(1) error in the denial of his motion to suppress the firearm 

used in the armed robbery and murders and (2) error in the 

joinder of trial with his codefendants and in the joinder of the 

armed robbery charges and charges relating to the home invasion. 

We affirm the order denying the defendant's motion to suppress 

as well as the defendant's convictions, and we discern no basis 

to exercise our authority pursuant to G. L. c. 278, § 33E.

1. Motion to suppress. a. Background. Prior to trial, 

the defendant filed a motion to suppress the firearm evidence, 

claiming, on State and Federal constitutional grounds, that 

police lacked probable cause for the warrantless search and the 

 

1 Where the codefendants share a common surname, we refer to 

each by their first name.
3

search exceeded the bounds of a proper inventory search. The 

motion judge, who was also the trial judge, held an evidentiary 

hearing, at which one witness, Officer Christian Hanson of the 

Lowell police department, testified. The judge denied the 

motion and made the following findings of fact, "which we 

supplement with evidence in the record that is uncontroverted 

and that was implicitly credited by the motion judge," see 

Commonwealth v. Melo, 472 Mass. 278, 286 (2015). On October 23, 

2009, Officer Hanson reported for his shift at approximately 1 

A.M. and learned of a reported armed robbery of two females that 

had occurred at approximately 8:30 P.M. on October 22, 2009. 

The robbery had taken place on Second Avenue in Lowell and a 

handgun was used. The two female victims who reported the 

robbery described the vehicle as a green Honda Civic sedan, 

bearing a specified license plate number, and with a Dominican 

Republic flag hanging from the rear view mirror. The 

perpetrators were described generally as Hispanic males.

Officer Hanson was assigned to Lowell's eastern sector and 

was driving alone and uniformed in a marked cruiser. At 1:33 

A.M., Hanson learned through a police dispatch that an armed 

home invasion had occurred at a home on Marshall Terrace, that a 

handgun had been used, and that two occupants had been shot. 

Hanson knew that the location of the invasion was approximately 

fifty yards from the earlier armed robbery. At approximately 
4

2:20 A.M., a dispatch alerted him that the same vehicle was 

involved in the earlier armed robbery and the home invasion and 

noted the address of the vehicle's registered owner as Phillips 

Street.2

Officer Hanson drove towards Phillips Street, looking for 

the vehicle. Within minutes of the second dispatch, while

heading in a westerly direction on Broadway Street, he came up 

behind a vehicle matching the exact description, including the 

license plate number and the Dominican flag. Hanson followed 

the vehicle as it turned left twice so that it was heading 

parallel to Broadway in the opposite direction, away from 

Phillips Street. He called for backup. Hanson saw the vehicle 

fail to stop at a stop sign. Officer Hanson stopped the vehicle 

at an intersection as two other cruisers arrived. The driver of 

the vehicle pulled over at Officer Hanson's command. Hanson and 

two other officers got out of their cruisers and approached the 

vehicle with weapons drawn.

 

2 There was no evidence as to how the police obtained the 

description of the vehicle used in the home invasion and, as 

such, the motion judge properly did not include the description 

or registered owner's address in his probable cause calculus. 

See Commonwealth v. Cheek, 413 Mass. 492, 494-495 (1992) ("Where 

the police rely on a police radio call to conduct an 

investigatory stop, under both Federal and State law, the 

Commonwealth must present evidence at the hearing on the motion 

to suppress on the factual basis for the police radio call in 

order to establish its indicia of reliability").
5

Officer Hanson and one of the officers approached the 

driver's side and Hanson ordered the occupants to raise their 

hands and keep them in plain sight. The defendant, who was the 

driver, was loud and belligerent and shouted, "What the fuck did 

I do?" The defendant was "moving around" in the driver's seat 

and then reached for the center console. At that point, the two 

officers pulled the defendant to the ground outside the vehicle

and handcuffed him. The third officer did the same to Giovanni 

Hill who was in the passenger's seat. The officers searched the 

vehicle, and after finding no weapons or contraband in the 

passenger's compartment, they opened the trunk and found a 

handgun. Officer Hanson testified that they had searched the 

trunk because they were looking for the firearm involved in the 

earlier armed robbery.

Shortly thereafter, one of the robbery victims was brought 

to the scene for a showup identification. She identified Hill 

as one of the robbers. Specifically, Officer Hanson testified 

that the victim said that Hill was standing "next to the man 

that was holding the gun with the hood or a mask over his face"

during the robbery. The police arrested the defendant on 

firearms charges and Hill for armed robbery.

The judge concluded that the search was justified under the 

automobile exception to the warrant requirement because, quoting 

Carroll v. United States, 267 U.S. 132, 162 (1925), there was 
6

enough evidence to "'warrant a man of reasonable caution in the 

belief' . . . that the handgun would be in the vehicle, perhaps 

in the trunk and out of sight." The judge reasoned that the six 

hours that had passed between the robbery and the automobile 

stop were not fatal where "it was reasonable to think that one 

or both of the occupants at the time of the stop had probably 

been using the vehicle at the time of the robbery," the 

occupants of the vehicle "fit the very general description of 

the robbers," and a handgun had been used in both the robbery 

and the later home invasion. Moreover, the judge concluded that 

the police had "ample probable cause" to search the entire 

vehicle, including the trunk, after the showup identification, 

at which Hill was identified as one of the robbers.

The defendant maintains on appeal that the firearm should 

have been suppressed because the police lacked probable cause to 

search the trunk and because the warrantless search was not 

justified under the inevitable discovery doctrine.3

b. Discussion. "In reviewing a ruling on a motion to 

suppress, we accept the judge's subsidiary findings of fact 

absent clear error 'but conduct an independent review of his 

ultimate findings and conclusions of law.'" Commonwealth v. 

 

3 The defendant also argues that the search was not 

justified on safety grounds or as a search incident to arrest, 

but the Commonwealth does not argue on appeal that either theory 

justifies the search, and the motion judge agreed with the 

defendant on these grounds.
7

Craan, 469 Mass. 24, 26 (2014), quoting Commonwealth v. Scott, 

440 Mass. 642, 646 (2004). "The judge determines the weight and 

credibility of the testimony." Commonwealth v. Woods, 466 Mass. 

707, 717, cert. denied, 134 S. Ct. 2855 (2014), citing 

Commonwealth v. Sinforoso, 434 Mass. 320, 321 (2001). We, 

however, "make an independent determination of the correctness 

of the judge's application of constitutional principles to the 

facts as found." Woods, supra, quoting Commonwealth v. Mercado, 

422 Mass. 367, 369 (1996).

"Warrantless searches are presumptively unreasonable, under 

both the Fourth Amendment to the United States Constitution and 

art. 14 of the Massachusetts Declaration of Rights, subject only 

to 'a few specifically established and well-delineated 

exceptions.'" Commonwealth v. Gouse, 461 Mass. 787, 792 (2012), 

quoting Commonwealth v. Bostock, 450 Mass. 616, 624 (2008). 

"Under the automobile exception to the warrant requirement, the 

search of a motor vehicle is reasonable and permissible where 

probable cause exists to support the search." Commonwealth v. 

Johnson, 461 Mass. 44, 49 (2011). If the police lacked probable 

cause under the automobile exception or otherwise performed an 

illegal search, the inevitable discovery doctrine permits the 

admission of evidence that ordinarily would be prohibited by the 

exclusionary rule. See Commonwealth v. Gray, 465 Mass. 330, 

345-346, cert. denied, 134 S. Ct. 628 (2013). The issue, then, 
8

is whether the police had probable cause to search the trunk 

before the showup identification; and if not, whether the 

Commonwealth met its burden to prove that the firearm is 

admissible under the inevitable discovery doctrine.

i. Automobile exception. A warrantless search of an 

automobile is permissible "where the police have probable cause 

to believe that a motor vehicle parked in a public place and 

apparently capable of being moved contains contraband or 

evidence of a crime." Gouse, 461 Mass. at 792, quoting Bostock, 

450 Mass. at 624. "The existence of probable cause depends on 

whether the facts and circumstances within the officer's 

knowledge at the time of making the search or seizure were 

sufficient to warrant a prudent man in believing that the 

defendant had committed, or was committing, an offense." 

Bostock, 450 Mass. at 624, quoting Commonwealth v. Miller, 366 

Mass. 387, 391 (1974). If the police had probable cause to 

search any part of the vehicle under the automobile exception, 

the police were entitled to search "all containers, open or 

closed, found within." Gouse, supra, quoting Commonwealth v. 

Cast, 407 Mass. 891, 908 (1990).

Officer Hanson, acting on the reliable information before 

him, had probable cause to search the trunk. Gouse, 461 Mass. 

at 794, quoting Cast, 407 Mass. at 895 ("In dealing with 

probable cause, . . . as the very name implies, we deal with 
9

probabilities. These are not technical; they are the factual 

and practical considerations of everyday life on which 

reasonable and prudent men, not legal technicians, act"). The

information supporting probable cause included the following:

4 

(1) a robbery involving a firearm occurred at 8:30 to 8:45 P.M.; 

(2) the vehicle involved in the robbery was a green Honda Civic 

sedan, bearing a specified license plate number, and with a 

Dominican Republic flag hanging from the rear view mirror; (3) 

the perpetrators were described as two Hispanic males; (4) an 

armed home invasion, where two people were shot, occurred 

approximately five hours after and approximately fifty yards 

from the armed robbery; (5) a vehicle matching the exact 

description of the vehicle used in the armed robbery was going 

in the general vicinity of the two crimes approximately six 

hours after the robbery; (6) the vehicle changed direction after 

the police cruiser approached, turning 180 degrees from its 

original direction; (7) the vehicle failed to stop at a stop 

 

4 The information contained in the second dispatch, the 

descriptions of the vehicle and "two Hispanic males" and the 

address of the registered owner of the vehicle, was not 

considered by the motion judge and, likewise, is not considered 

in our determination of probable cause. The Commonwealth did 

not offer the basis of knowledge for the source of the 

information contained in that dispatch, and therefore, the 

Commonwealth has not shown that the information is reliable. 

See Commonwealth v. Lopes, 455 Mass. 147, 155-156 (2009) 

(Commonwealth must show reliability of police broadcast through 

"basis of knowledge of the source of the information . . . and 

the underlying circumstances demonstrating that the source of 

the information was credible or the information reliable").
10

sign after the police cruiser approached; (8) the occupants of 

the vehicle were two Hispanic-appearing males; (9) the driver of 

the vehicle was belligerent and made furtive gestures; and (10) 

no weapons or contraband were located inside the interior of the 

vehicle. The sum of the information known to police formed a 

sufficient basis on which to search the entire vehicle, 

including the trunk, because the officers could have 

appropriately concluded that the vehicle used in the armed 

robbery, occurring hours prior in the same general proximity to 

the location of the stop, contained evidence of that crime.

The defendant's argument against probable cause hinges on 

the six-hour gap between the armed robbery and the stop, and the 

lack of a specific description of the perpetrators. We disagree 

that either factor is fatal. Although "[f]acts supporting 

probable cause must be 'closely related to the time of the issue 

of the warrant [so] as to justify a finding of probable cause at 

that time,'" we conclude that the temporal component was 

satisfied under these circumstances. See Commonwealth v. 

Matias, 440 Mass. 787, 792 (2004), quoting Commonwealth v. Cruz, 

430 Mass. 838, 843 (2000).

Our conclusion is guided by the nature of the crime and of 

the evidence. "A nexus between the items to be seized and the 

place to be searched need not be based on direct observation and 

may be found in 'the type of crime, the nature of the missing 
11

items, the extent of the suspect's opportunity for concealment, 

and normal inferences as to where a criminal would be likely to 

hide stolen property.'" Commonwealth v. Burt, 393 Mass. 703, 

715-716 (1985), quoting Commonwealth v. Cinelli, 389 Mass. 197, 

213, cert. denied, 464 U.S. 860 (1983). Here, Officer Hanson 

knew that a firearm was used in an armed robbery by occupants of 

a vehicle that was stopped six hours after the crime occurred. 

Although it is possible that the perpetrators of the robbery 

could have hidden the firearm elsewhere in the time that passed, 

it is a reasonable inference that the firearm, evidence not 

easily disposed of, was hidden in the trunk. See Burt, supra at

716 ("because the hasty disposal of large amounts of coins could 

have been risky to the alleged thieves, the inference that some 

of the coins would be found in the defendants' residences and 

vehicles was reasonable").

Further, it was not unreasonable to suspect that the 

current occupants of the vehicle were using the vehicle six 

hours earlier where there was no information that the vehicle 

was a rental and the occupants matched the very general 

description of the perpetrators. Cf. Commonwealth v. Jordan,

469 Mass. 134, 146 (2014) (police lacked probable cause where 

vehicle with license plate number matching that involved in 

shooting two days earlier known to be rented and officers did 

not know identity of renter or terms of rental arrangement). In 
12

addition to providing a precise description of the vehicle, the 

victims described the perpetrators as two males of Hispanic 

descent, which narrowed the range of possible suspects and 

corresponded with the description of the males in the vehicle 

during the stop. See Commonwealth v. Mercado, 422 Mass. 367, 

371 (1996) (general description of two Hispanic males narrowed 

"range of possible suspects" for reasonable suspicion).

In addition to the evidence discussed above, the driver's 

evasive movements after the marked cruiser approached -- failing

to stop at a stop sign and turning 180 degrees from his initial 

direction -- may be considered. See Commonwealth v. Ortiz, 376 

Mass. 349, 354 (1978) (evasive movements insufficient, but 

relevant, for determining probable cause). Further supporting 

our analysis is the defendant's belligerent behavior between the 

stop and the search that heightened the officers' suspicions

when he reached towards the center console when instructed to 

keep his hands up. See Commonwealth v. Va Meng Joe, 425 Mass. 

99, 106 (1997), citing Commonwealth v. Alvarado, 420 Mass. 542, 

551 (1995) (exiting vehicle at red light when approached by 

police and "furtively reach[ing] into his pocket" are

"additional factor[s] that allows us to conclude that, at the 

time of the search, the police officers had probable cause to 

believe that the defendant had committed, or was committing, a 

crime").
13

ii. Inevitable discovery. Even if the officers acted 

prematurely in opening the trunk, the firearm would still be 

admissible so long as the Commonwealth proved by a preponderance 

of the evidence that the firearm would have been inevitably 

discovered. Commonwealth v. Balicki, 436 Mass. 1, 16 (2002). 

Under the inevitable discovery doctrine, evidence may be 

admissible as long as the Commonwealth can demonstrate that 

discovery of the evidence by lawful means was certain as a 

practical matter, "the officers did not act in bad faith to 

accelerate the discovery of evidence, and the particular 

constitutional violation is not so severe as to require 

suppression." Commonwealth v. Sbordone, 424 Mass. 802, 810 

(1997), citing Commonwealth v. O'Connor, 406 Mass. 112, 117-118 

(1989). This is a "demanding test." Balicki, supra, quoting 

Commonwealth v. Perrot, 407 Mass. 539, 548 (1990).

After the showup identification, the police had robust 

evidence supporting probable cause. At that point, they had 

direct evidence that an occupant of the vehicle was involved in 

the armed robbery that occurred six hours before the stop. 

Thus, the Commonwealth met its burden in this regard.

The defendant argues that the inevitable discovery doctrine 

is not applicable where Hill had no connection to the vehicle

other than as a passenger, it was not certain that the police 

would search the trunk after the identification, and the police 
14

acted in bad faith. The defendant's arguments are unavailing. 

Hill's presence supports the inference that the firearm was 

hidden in the vehicle. It was "certain as a practical matter" 

after Hill was identified that the police would search the trunk 

because evidence from the armed robbery was not in the passenger 

compartment and the officers were still looking for the firearm. 

Sbordone, 424 Mass. at 810. Lastly, the officers did not act in 

bad faith where the defendant was not harmed by the potentially 

premature search of the trunk. The bad faith component of the 

inevitable discovery rule is designed to ensure that "the 

Commonwealth's case is not aided (or the defendant's case 

harmed) by the unlawful, premature discovery of the evidence." 

O'Connor, 406 Mass. at 119. The firearm was properly admitted 

where it would have been discovered during the course of the 

stop and there is no allegation that the firearm played any role 

in the victim's identification of Hill.5

The evidence supports the denial of the defendant's motion 

to suppress.

 

5 The defendant does not dispute that the stop and showup 

identification were both lawful. The identification properly 

occurred during the stop. See Commonwealth v. Salerno, 356 

Mass. 642, 646-647 (1970), quoting Ker v. California, 374 U.S. 

23, 34 (1963) ("An expeditious collateral inquiry which might 

result in the suspects' arrest or prompt release is not 

unreasonable when done to meet 'the practical demands of 

effective criminal investigation and law enforcement'").
15

2. Trial. a. Background. As key witnesses at trial,

Commonwealth presented testimony from the two armed robbery 

victims, Sophia Deno and Ashley Cardoso; from witnesses inside 

Marshall Terrace during the home invasion and murders, Kyle 

Delgado and Brian Staples; and from several cooperating 

witnesses who were with the defendant during the evening of the 

armed robbery and home invasion: Hill, Darien Doby, and Joshua 

Silva. We recite the facts the jury could have found based on 

the Commonwealth's case. Commonwealth v. Latimore, 378 Mass. 

671, 676-677 (1979). Prior to the armed robbery, a vehicle 

drove slowly by the victims, Deno and Cardoso, two times and 

then parked around the corner from them. The vehicle was a 

green Honda Civic with a Dominican flag hanging from the rearview mirror and owned by the defendant's sister. The vehicle 

contained the defendant, Hill, Doby, and Tim Brown. The 

defendant got out of the vehicle with Hill and removed a firearm 

from the trunk. The defendant approached Deno and Cardoso and 

asked them to give him their "stuff." When they did not 

immediately agree, the defendant pointed a gun at Cardoso's arm

and took both victims' purses. During the encounter, Hill stood 

five to ten feet away laughing.

The defendant was wearing a khaki or green colored 

sweatshirt with a hood covering all of his face except his 

mouth. Cardoso's statement to police was read in evidence, in 
16

which she said, "I could tell by his face and the tone of his 

voice that he was Spanish," and described the defendant as five

feet, nine inches to five feet, ten inches tall, with a "little 

kind of moustache" and maybe "a little bit of chin hair." Hill 

was wearing a red and tan jacket.

After the robbery, the two reentered the vehicle; the 

defendant sat in the driver's seat with the two purses and 

firearm on his lap, and Hill entered the passenger side of the 

vehicle. The group then drove to Simon Phanthai's house where 

Phanthai, at the defendant's request, gave the defendant a black 

sweatshirt to wear instead of his green hooded sweatshirt. 

Phanthai joined the group, and after a brief separation, 

Phanthai, the defendant, Hill, Brown, and Doby met at Brown's 

house.

At Brown's house, the defendant went through the victims' 

purses and retrieved eighty dollars. He told Hill to take one 

of the victim's debit cards to a bank's automated teller machine 

to try to withdraw money. After trying to withdraw money at two 

banks, Hill returned unsuccessful.

At about 11:45 P.M., the two codefendants at trial, Jamal

and Karon, arrived at Brown's house. Either Jamal or Karon 

asked the defendant if he wanted to be involved in a robbery. 

The defendant agreed to join them and to bring his gun. Silva 

drove his 1995 Toyota Camry to Brown's house to meet the group
17

and agreed to be the driver for the robbery. The defendant, 

Jamal, and Karon all changed into different clothes provided by 

Brown. The defendant put on a Boston Red Sox sweatshirt with a 

large "B" on it, Jamal put on a black sweatshirt with a hood, 

and Karon put on sweatpants. Jamal obtained a gun from Brown.

The defendant, Jamal, Karon, and Silva left Brown's house. 

Jamal instructed Silva where to drive. Silva remained in the 

vehicle and watched the other three walk towards the residence 

and through a garage.

The two murder victims, Luis Antonio Martinez Delgado,

known as "Tony," and Hector Delgado, lived at Marshall Terrace 

with Brian Staples and Michael DelGreco. The Delgados sold 

marijuana from their four-story house. All four residents, in 

addition to the Delgados' nephew, Kyle Delgado, were at the home

during the crime. Kyle and Tony were on the fourth floor, 

Hector and Staples were in their rooms on the third floor, and 

DelGreco was on the couch on the second floor.

At or around 1 A.M., there was a loud bang, like a 

"battering ram" on the door. Tony yelled to see who was there 

and someone responded "Nicole." Tony went downstairs and told 

Kyle to remain upstairs. Kyle was hiding during most of the 

home invasion and did not see any intruders. Staples came down 

from the third floor and saw two males, each with a gun. One 

male was holding a gun to Tony's head and the second male 
18

started walking toward Staples with his gun drawn when Staples 

came down the stairs. Staples testified that the male with Tony 

was broad, wearing a black or gray jacket with a hood, and 

"maybe a little bit taller" than Tony, who was five feet, eight 

inches or five feet, nine inches tall. The male who approached 

Staples was a "little shorter" with a "smaller frame" than the 

male with Tony, was wearing a "reddish" jacket with an emblem 

and a hood pulled down to his nose, had a "little goatee," and 

had "dark skin, Spanish."

6

The male with Tony asked, "Where is it?" Tony responded, 

"I don't have anything," and Staples ran upstairs to his bedroom 

to call 911. Kyle and Staples both heard gunshots while hiding. 

When they emerged, they found Hector lying on his back in his 

bedroom with a visible bullet hole in his stomach. Tony was 

lying on his stomach at the top of the stairs leading to the 

fourth floor with a visible bullet hole in his back.

Silva waited in his vehicle outside Marshall Terrace. 

Karon returned three to four minutes after he had left the 

vehicle and Jamal and the defendant returned to the vehicle 

approximately five minutes after Karon. Jamal told the 

defendant that he was a great shot and the defendant responded, 

 

6 In an array containing the defendant's photograph, Staples 

pointed to the defendant but said he was not able to positively 

identify anyone. The defendant's photograph "looked similar in 

bearded features," but Staples "couldn't be 100 percent 

positive, since he felt the beard was a little bit longer."
19

"I know once I seen them jump on you I started shooting." The 

group returned to Brown's house. A surveillance system from an 

automotive garage nearby Marshall Terrace showed Silva's Toyota 

Camry automobile driving down Orford Street, which is parallel 

to Marshall Terrace.

Back at Brown's house, the defendant and Jamal conversed 

about the events that had occurred. The jury heard that Karon 

tried to kick in the door, that somebody answered "Nicole" to a 

person in Marshall Terrace, that Jamal was going to Boston to 

hide, and that the defendant and Jamal would act like they did

not know each other if the police came.

The defendant, Hill, and Doby left Brown's apartment 

together in the vehicle belonging to the defendant's sister. 

Hill placed the defendant's gun in the trunk of the vehicle. 

The defendant dropped off Doby and was headed to Hill's house 

when he and Hill were stopped by police and subsequently 

arrested.

Gunshot residue samples were taken from the defendant and 

Hill after the arrest; the sample from the defendant tested 

positive and the sample from Hill tested negative. A ballistics 

expert from the State police opined that the firearm obtained 

during the search of the trunk fired the cartridge casing and 

projectiles recovered from Marshall Terrace and from the bodies 

of Tony and Hector.
20

In closing arguments, defense counsel for all three 

defendants argued that other persons present at Brown's 

apartment on the evening leading to the armed home invasion and 

double murder were responsible. The defendant's counsel argued 

that Silva and Brown were the perpetrators, not the defendant 

and the McDougal codefendants. Karon's counsel named Brown, 

Silva, and Hill as culpable parties. Jamal's counsel argued 

that the four persons involved were Brown, Silva, Doby, and 

Hill.

b. Joinder. The defendant argues that his right to due 

process guaranteed by the Fifth Amendment to the United States 

Constitution and as applied to the States by the Fourteenth 

Amendment was violated by the joinder of his trial with the 

McDougals and the joinder of his offenses. The defendant's 

argument is unavailing.

i. Joinder of defendant and codefendants at trial. Prior 

to trial, the defendant moved to sever his case from the cases 

of Jamal and Karon, arguing that he, Jamal, and Karon would 

present inconsistent defenses for a number of reasons. Defense 

counsel renewed the motion several times during trial, and each

time, the motion was denied.7 As his primary contention on 

 

7 The defendant argued that the defenses were inconsistent 

because: (1) Jamal and Karon each moved to enter photographs of 

individuals, including the defendant, holding firearms; (2) 

statements made by Jamal after the homicide about details of the 
21

appeal, the defendant argues that he was prejudiced by Jamal and 

Karon's trial strategy because Jamal and Karon, African-American 

men, effectively "point[ed] the finger" at the defendant by 

highlighting testimony that the perpetrators of the home 

invasion were Hispanic. Jamal and Karon's counsel moved to 

sever from the defendant on similar grounds, asserting that 

Jamal and Karon "want these two intruders to be Spanish" and the 

defendant's attorney "wants the two intruders to be black" or 

"some other color but certainly not Spanish." The judge denied 

the motions after reasoning that the defenses did not require 

the jury to determine that one defendant or another was guilty, 

noting that "[t]here are lots of black people and lots of 

Hispanic people to go around."

It is presumed that individuals will be tried together when 

criminal charges "arise out of the same criminal conduct."

Commonwealth v. Siny Van Tran, 460 Mass. 535, 542 (2011), 

quoting Mass. R. Crim. P. 9 (b), 378 Mass. 859 (1979), and 

citing Commonwealth v. Smith, 418 Mass. 120, 125 (1994). A 

judge may sever trials if it appears that joinder "is not in the 

best interests of justice," Mass. R. Crim. P. 9 (d), and should 

 

murder would prejudice the defendant's case; (3) Jamal and 

Karon's counsel highlighted the description of the home invasion 

intruder as "sounding Hispanic"; (4) Jamal's counsel introduced 

a statement allegedly made by the defendant while in jail naming

Jamal as the shooter; and (5) Jamal's counsel introduced 

evidence that gunshot residue was found on the steering wheel of 

the vehicle the defendant was driving.
22

sever trials if: (1) the defenses are mutually antagonistic

where the "sole defense of each [is] the guilt of the other," 

Siny Van Tran, supra, quoting Commonwealth v. Stewart, 450 Mass. 

25, 31 (2007); or (2) "the prejudice resulting from a joint 

trial is so compelling that it prevents a defendant from 

obtaining a fair trial." Siny Van Tran, supra, quoting 

Commonwealth v. Moran, 387 Mass. 644, 658 (1982). "Nonetheless, 

'even mutually antagonistic and irreconcilable defenses do not 

require severance if there is sufficient other evidence of 

guilt.'" Commonwealth v. Akara, 465 Mass. 245, 257 (2013), 

quoting Commonwealth v. Vasquez, 462 Mass. 827, 838 (2012).

There was no abuse of discretion in the denial of the 

motions to sever because the defenses at trial were not mutually 

exclusive and joinder did not prevent the defendant from 

obtaining a fair trial. Although the codefendants differed in 

the descriptive characteristics they wanted the jury to remember 

about the intruders, the defendant did not need the jury to 

believe that Jamal or Karon were guilty in order to obtain an 

acquittal. See Siny Van Tran, 460 Mass. at 542. Instead of 

naming each other, the three codefendants all named other third 

parties as the actual perpetrators.8 Counsel for each defendant 

argued that the witnesses who testified for the Commonwealth in 

 

8 The defenses also were consistent in that each asserted 

inadequate police investigation under Commonwealth v. Bowden, 

379 Mass. 472, 485-486 (1980).
23

exchange for deals were lying to protect themselves and other 

friends and all asserted that Brown and Silva were involved in 

the murders instead of their clients.

The defendant also argues on appeal that joinder was 

prejudicial where Jamal's counsel introduced a statement 

allegedly made by the defendant while in jail, naming Jamal as 

the shooter. The judge instructed the jury to disregard any 

reference to the defendant as the declarant. The jury are 

presumed to follow instructions. Commonwealth v. Andrade, 468 

Mass. 543, 549 (2014), citing Commonwealth v. Gonzalez, 465 

Mass. 672, 681 (2013). Moreover, any harm that the defendant 

may have suffered by the admission of this evidence should be 

viewed against the benefit he received as a result of the 

joinder with Karon. Because the defendant's trial was joined 

with Karon's, the jury did not hear a statement made at Brown's 

house wherein the defendant asserted that he shot two people 

inside Marshall Terrace. Although discussion of events before 

and after the home invasion were admitted against all three 

defendants, this statement was excluded because the theory of 

adoptive admission was not satisfied where there was 

insufficient evidence that Karon actually entered the home. The

judge noted that he would likely have admitted the statement had 

Karon's trial been severed.
24

Lastly, there was no error where considerable evidence 

linked the defendant to the crime. See Akara, 465 Mass. at 257. 

The firearm belonging to the defendant, which was located in the 

trunk of the vehicle he was driving in the early morning hours 

following the murder, fired the projectiles recovered from the 

bodies of the victims. Gunshot residue was found on the 

defendant's hands shortly after the murders. Even if the 

defenses at trial were irreconcilable, denial of the motions to 

sever would not require a new trial where there was 

"considerable independent evidence" of the defendant's guilt. 

Akara, supra, quoting Vasquez, supra at 838; id. at 838 n.10 

("For purposes of severance, independent evidence is evidence 

that is not offered by one defendant against another at their 

joint trial").

ii. Joinder of charges. The defendant claims that the 

trial for armed robbery should not have been joined with the 

indictments stemming from the home invasion and murders. He

argues that joinder of the charges was prejudicial and improper 

where the indictments were unrelated and the potential for 

prejudice outweighed any governmental interest in a single 

trial. Specifically, the defendant argues that, other than the 

firearm, "no evidence relating to either set of charges . . . 

could have been introduced in a trial of the other set of 
25

charges" and propensity to engage in criminal activity likely 

contributed to convictions on both charges.

Joinder "shall" be allowed when a defendant is charged with 

two or more related offenses unless the trial judge "determines 

that joinder is not in the best interests of justice." Gray, 

465 Mass. at 334-335, quoting Mass. R. Crim. P. 9. To succeed 

on a claim of misjoinder, the defendant "bears the burden of 

demonstrating that the offenses were unrelated, and that 

prejudice from joinder was so compelling that it prevented him 

from obtaining a fair trial." Commonwealth v. Pillai, 445 Mass. 

175, 180 (2005), quoting Commonwealth v. Gaynor, 443 Mass. 245, 

260 (2005). The trial judge's decision whether to join offenses 

will not be reversed unless there has been a "clear abuse of 

discretion." Pillai, supra, quoting Commonwealth v. Walker, 442 

Mass. 185, 199 (2004).

"For purposes of joinder, offenses are related 'if they are 

based on the same criminal conduct or episode or arise out of a 

course of criminal conduct or series of criminal episodes 

connected together or constituting parts of a single scheme or 

plan.'" Pillai, 445 Mass. at 180, quoting Mass. R. Crim. P. 9 

(a) (1). Factors that may be considered when determining 

whether offenses are related include factual similarities, 

closeness of time and space, and "whether evidence of the other 
26

offenses would be admissible in separate trials on each 

offense." Pillai, supra.

The defendant failed to demonstrate that the offenses are 

unrelated. The offenses were factually similar in that the 

defendant used his firearm in an attempt to coerce the victims 

of each incident to relinquish money and the crimes were close 

in time and space, occurring within approximately fifty yards of 

each other and within a time span of five hours.

Moreover, evidence of each offense would be admissible in 

separate trials. Although evidence of other bad or criminal 

acts are not admissible to show "bad character or propensity to 

commit the crime charged," it may be admissible "for some other 

probative purpose, including to show intent, motive, state of 

mind, or some other relevant issue at trial." Commonwealth v. 

Dung Van Tran, 463 Mass. 8, 14 (2012), quoting Commonwealth v. 

Morgan, 460 Mass 277, 289 (2011).

In this case, evidence of the armed robbery, in which the 

defendant obtained eighty dollars and was unsuccessful in 

obtaining more money through the use of the victim's debit card, 

was relevant to show the defendant's intent, motive, and state 

of mind when participating in the home invasion. The evidence, 

therefore, would have been admissible at trial on the home 

invasion and murders. Dung Van Tran, supra.
27

Similarly, evidence of the home invasion would have been 

admissible at trial on the armed robbery. The "'prosecution 

[is] entitled to present as full a picture as possible of the 

events surrounding the incident itself,' as long as the 

probative value of the evidence presented is not substantially 

outweighed by any prejudice to the defendant." Commonwealth v.

Robidoux, 450 Mass. 144, 158 (2007), quoting Commonwealth v. 

Marrero, 427 Mass. 65, 67 (1998). The defendant presented a 

third-party culprit defense to the armed robbery, arguing that 

there was insufficient evidence to convict him where the only 

identification of his participation was made by Hill, a 

cooperating witness. While evidence of the murders may not have 

been admissible, evidence of the home invasion, which was 

"inextricably intertwined" with the defendant's earlier attempts 

to obtain money through the armed robbery, would have been 

permitted. Marrero, supra at 67-68, quoting Commonwealth v. 

Bradshaw, 385 Mass. 244, 269 (1982) (prior bad act evidence 

"inextricably intertwined" with charged offense allowed to rebut 

inference of "inexplicable act of violence").

The defendant also argues that joinder was improper because 

the best interests of justice supported severance. The "best 

interests of justice" are determined by "weighing the 

defendant's interests against judicial economy." Gray, 465 

Mass. at 335, quoting Commonwealth v. Sylvester, 388 Mass. 749, 
28

758 (1983). The defendant's argument is unavailing because 

considerable evidence of the home invasion and armed robbery 

would have been admissible in separate trials. Additionally, 

the judge repeatedly instructed the jury that the Commonwealth 

had the burden of proving each separate indictment beyond a 

reasonable doubt.9 Thus, there was no abuse of discretion in the 

denial of the defendant's motion to sever. See Gray, supra at 

336-337.

3. Relief pursuant to G. L. c. 278, § 33E. We have 

examined the record pursuant to our duty under G. L. c. 278, 

§ 33E, and we discern no basis on which to grant the defendant 

relief.

So ordered.

 

9 In addition to instructing the jury in the preliminary and 

final instructions that the Commonwealth must prove beyond a 

reasonable doubt each of the elements of each offense, the judge 

gave the following preliminary instructions:

"What I do want to discuss at this point is that each 

defendant is entitled to individual judgment and the 

Commonwealth is entitled to your individual judgment as to 

each defendant. And that goes for each defendant and each 

count. So, although we have a number of counts against 

each defendant and we have a number of defendants together 

in the courtroom, it’s not a case of one for all and one 

for all. It may be that you find all the defendants not 

guilty, or some guilty and some not guilty, or some perhaps 

guilty on some charges and not the others. So I guess a 

short way to say that is that everybody concerned is 

entitled to have you exercise individual judgment as to 

each defendant and each charge."