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SJC-11376

COMMONWEALTH vs. ANTHONY EUGENE JESSUP.

Hampden. December 5, 2014. - April 8, 2015.

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

Homicide. Firearms. Felony-Murder Rule. Constitutional Law, 

Imprisonment, Freedom of speech and press. Wanton or 

Reckless Conduct. Robbery. Practice, Criminal, Capital 

case, Motion to suppress, Instructions to jury, Assistance 

of counsel.

Indictments found and returned in the Superior Court 

Department on July 30, 2010.

A pretrial motion to suppress evidence was heard by 

Constance M. Sweeney, J., and the cases were tried before 

Richard J. Carey, J.

Elaine Pourinski for the defendant.

Deborah D. Ahlstrom, Assistant District Attorney, for the 

Commonwealth.

HINES, J. In the early morning hours of May 30, 2010, 

Jonathan Santiago was shot and killed as he sat in his vehicle 

parked near a Springfield sports bar. The defendant was 

indicted for the shooting, and a jury convicted him of murder in 
2

the first degree on the theory of felony-murder (with attempted 

armed robbery as the underlying felony), unlawful possession of 

a firearm, and unlawful possession of a loaded firearm.1,2 

Represented by new counsel on appeal, he argues (1) error in the 

denial of his motion to suppress a letter he wrote to another 

detainee while he was detained awaiting trial; (2) that a 

substantial likelihood of a miscarriage of justice arose from 

the trial judge's failure to instruct on involuntary 

manslaughter; and (3) that his trial counsel was ineffective in 

not requesting an instruction on involuntary manslaughter based 

on wanton or reckless conduct. We affirm the order denying the 

defendant's motion to suppress as well as the defendant's 

convictions, and discern no basis to exercise our authority 

pursuant to G. L. c. 278, § 33E.

Background. Based on the evidence adduced by the 

Commonwealth at trial, the jury could have found the following 

facts. On May 29, 2010, the victim met up with his friends, 

 

1 The defendant also was convicted of armed assault with 

intent to rob, which was dismissed as duplicative of the 

predicate felony underlying the felony-murder conviction, and of 

unlawful possession of ammunition, which was dismissed as a 

lesser included offense of unlawful possession of a loaded 

firearm.

2 The defendant was tried together with Jason Jamal Stovall, 

who was charged with the same offenses as the defendant, but as 

an aider and abettor or joint venturer, see Commonwealth v. 

Zanetti, 454 Mass. 449, 466-467 (2009). The jury found Stovall 

not guilty on all charges against him.
3

Andrew Cooke, Marquis Chase, Kasheef Sheppard, Timothy 

Henderson, and Alan Bamber, outside a sports bar in Springfield 

where Virgil Vargas was celebrating her twenty-first birthday.3 

Vargas previously had attended high school in Springfield with 

the victim, the defendant, and James Jamal Stovall, who was 

tried with the defendant. Stovall was her friend. She spoke 

with Stovall and the defendant outside the bar about fifteen to 

twenty minutes before the shooting.4 According to Vargas, both 

men wore black hooded sweatshirts, and hats.5 The defendant's 

braided hair was visible under his hat. At the time of the 

shooting, which Vargas estimated had occurred at approximately 

12:35 A.M., she had returned inside the bar.

The victim, who was wearing a "long, big chain," was parked 

in a lot across the street from the bar. He waited by the trunk 

 

3 Virgil Vargas had promoted the party on social media 

sites.

4 Others saw the defendant and Stovall in the area outside 

the bar before the shooting. Andrew Cooke, who previously had 

worked at a restaurant with Stovall and "knew of" the defendant, 

testified that he saw the defendant and that the defendant was 

wearing a black "pilot's" jacket and a black baseball cap. He 

did not "get a good look" at Stovall. Marquis Chase also saw 

the defendant and Stovall before the shooting. Chase testified 

that the defendant was wearing a black sweatshirt and hat and 

had braided hair, and that Stovall was wearing a black 

sweatshirt. Another person present testified that he saw the 

defendant and Stovall before the shooting and that both were 

wearing hooded sweatshirts and one wore a hat.

5 In her invitations to her party, Vargas had asked people 

to wear black clothing.
4

of his automobile while some of his friends were deciding 

whether to stay or leave. When the group decided to leave, 

Cooke approached the victim, who was then seated in the driver's 

seat of his automobile, to inform him.

The testimony varied about what happened next. Cooke

testified that when he reached the victim's automobile, he 

leaned over to speak with the victim through the front driver's 

side window, which was partially opened. As Cooke was doing so, 

he heard a sound and turned back toward it. He saw a lightskinned African-American male,6 with braids, a hat, and a 

"pilot's" jacket approach from behind with a gun. The person 

put the gun into the rear driver's side window, and stated, 

"Give me some money," or "Give me what you have."7 Cooke

testified that he heard a gunshot, saw the victim's automobile 

back up and then move forward, and then heard the automobile 

crash into a fire hydrant. Cooke did not see anyone else at or 

approaching the victim's automobile.8̓

9

 

6 Cooke testified that he only saw part of the shooter's 

face, namely, the shooter's chin.

7 After the shooting and while at the scene, Cooke told one 

officer that the shooter had pointed the gun at the victim and 

ordered the victim to get out of the automobile and then pointed 

the firearm at him (Cooke).

8 During his cross-examination, Cooke acknowledged that he 

told a police officer that there might have been someone on the 

other side of the automobile.
5

Chase testified that just before the shooting, Cooke was 

speaking to the victim through the driver's side window. Chase 

heard someone say, "Open the door or I'll kill you." He went to 

see what was going on and saw a black male with braids10 behind 

Cooke with his arm inside the rear driver's side window of the 

victim's automobile (but did not see a gun). Chase testified 

that he observed another person, who also was a black male,

standing by the passenger's side mirror of the victim's 

automobile. Chase heard a gunshot and then observed the 

victim's automobile travel in reverse, eventually crashing into 

a fire hydrant. Chase testified that after the shooting, the 

two men who had approached the vehicle took off running across 

the street.11

Another individual who was present, Kashawn Harris, 

testified that he knew Stovall from high school and was familiar 

with the defendant. After Harris learned that his friends were 

going to leave and not attend the party, he went back to his 

automobile. He heard yelling and turned around. Harris saw a 

light-skinned black male in dark clothing on the driver's side 

 

9 At trial, Cooke made an in-court identification of the 

defendant as the shooter.

10 Chase testified that he did see some of this man's face.

11 When Chase first spoke with police, he did not mention 

Cooke's presence or that anyone was in the area of the 

passenger's side door.
6

of the victim's automobile reaching into the automobile and 

another person in dark clothing running up on the other side of 

the automobile. He saw the person on the passenger's side of 

the automobile touch the roof and a door. From the direction of 

the victim's automobile, he heard a shot, and he then saw the 

victim's automobile move and crash into a fire hydrant. Harris 

could not recall whether the victim's automobile moved before 

the shot was fired, but the two occurrences were close in time. 

He testified that after the shooting, the two people he had seen 

by the victim's automobile took off running across the street.

After the shooting, the victim's friends rushed over to his 

automobile, and Chase and Henderson entered the vehicle and 

tried to revive him. The scene was chaotic with people running 

and screaming.

Police and medical response personnel arrived at the scene 

within minutes. The victim died as the result of a gunshot 

wound to his back and chest. The medical examiner who conducted 

the autopsy testified that the victim had an entrance wound in 

the middle of the left side of his back. The bullet traveled 

through his left lung, which collapsed; went through his aorta, 

a major blood vessel; and exited through his upper right chest. 

The track of the wound was left to right, and back to front. 

Although the victim suffered other injuries to his face, the 

gunshot wound caused his death. The medical examiner also 
7

opined that the gunshot wound was not one which would have 

resulted from a gun being fired from within two inches of the 

victim, so that the wound could not be characterized as a 

contact or close contact wound.

Police searched the area. One officer found a discharged 

nine millimeter cartridge casing which he opined likely would 

have been fired from a semiautomatic weapon. No weapon was ever 

recovered.

The victim's automobile subsequently was processed for the 

presence of fingerprints. Fingerprints taken from the front and 

rear passenger's side windows matched those of Stovall. 

Fingerprints removed from other areas inside and outside the 

automobile matched those of Henderson and Chase. There were no 

fingerprints matching the defendant's.

Police took statements from various people who were present 

at the time of the shooting. They brought several people to the 

police station to view (separately) photographs of possible 

suspects.

One officer, based on a description that Chase had given of 

the shooter, generated about 900 photographs of possible 

suspects through a computer search. The officer asked Chase to 

view the suspects on the computer, which displayed about twelve 

photographs per screen. After viewing approximately 300 

photographs, Chase selected the defendant's photograph, 
8

identifying him as the shooter. At this point, the police 

learned the defendant's name.

Cooke told Springfield police Sergeant Kevin Devine that 

the shooter was a light-skinned black male between five feet, 

four inches and five feet, seven inches; wore a black baseball 

cap with a "B" on it; wore a dark-colored coat; and had braids 

to the back of his neck. Cooke testified that he also told 

police that the shooter had a moustache and some markings on his 

face. Cooke was not able to positively identify the defendant 

from any photographs shown to him on a computer screen, but 

later from a photographic array of eight individuals he selected 

three photographs depicting individuals who bore a resemblance 

to the shooter, one of which was a photograph of the defendant. 

Cooke stated that if he were to see the shooter in person, he 

would be able to make a positive identification.

On May 31, Cooke returned to look at a photographic array,12

but was not able to make an identification. Again, he pointed 

to one photograph (of the defendant), stating that the person 

resembled the shooter.

In the early afternoon of June 1, Cooke, Bamber, Sheppard, 

and Chase went to a park to go swimming. While there, they saw 

the defendant and his girl friend. Cooke "stopped dead in his 

 

12 This photographic array contained the same subjects as 

the earlier one referenced, but displayed a profile view of 

those subjects.
9

tracks" when he saw the defendant. Someone asked, "Is that 

him?" to which Cooke replied that it was.13 Cooke's friends then 

attacked the defendant, who eventually was able to escape. 

Later, Cooke contacted Sergeant Devine and went to the police 

station; there, looking at a different photograph array 

containing eight photographs, Cooke positively identified a 

photograph of the defendant as the person who had shot the 

victim.

Police had Chase return to the police station to view a 

photographic array containing eight photographs. Chase selected 

the defendant's photograph from the array and stated that the 

person depicted therein was one of the two men at the victim's 

automobile at the time of the shooting. From a different 

photographic array, Chase also identified one of the two men as 

Stovall.

Police also had Harris view photographic arrays on June 1. 

From an array, Harris selected the defendant's photograph as 

depicting the person on the driver's side of the victim's 

automobile and, from another array, selected Stovall's 

photograph as being one of the two men who fled from the 

victim's automobile after the shooting. At trial, Harris 

testified that, at the time of the shooting, he had not seen the 

 

13 Cooke testified that it was his cousin Chase who had

asked this question, but Chase denied it at trial.
10

faces of the men who had approached the victim, but had assumed 

from the clothing worn by the men who had been by the victim's 

automobile that the men were the defendant and Stovall.

After the encounter with the victim's friends, the 

defendant and his girl friend fled Massachusetts. They were 

apprehended in Virginia on June 2, the next day, and detained at 

the Southside regional jail (jail) in Emporia, Virginia, pending 

extradition to Massachusetts. While awaiting extradition, the 

defendant sent his girl friend, who also was being detained at 

the same facility, a letter that was the subject of the motion 

to suppress. The Commonwealth introduced a redacted portion of 

this letter at trial as admissions of the defendant as well as 

consciousness of guilt evidence. In the letter, the defendant 

stated:

"I hated being broke. I mean the lights got cut off, 

there was no cable, . . . gas, . . . et cetera. I wanted 

to do so much with so little and it didn't help, you kept 

reminding me that I wasn't shit and I didn't have shit. I 

. . . felt worthless and it hurt, so it caused me to not 

think clearly and to go out and do some dumb shit.

"But I got good news, I'm not going to do life, first 

the bullet didn't kill him, the accident did, and second, 

they don't have any evidence just those stupid school kids 

saying I did it, but you know how that is that. All I know 

is that I was driving with you all day and left and went 

home, so I don't know what them kids are talking about.

"I'm going to beat this case so stick by me please and 

then we can move if you want and start a new life, I swear. 

I don't know about you, but I was kind of glad this shit 

happened because we went on a road trip together. I was so 
11

excited to go to ATL with you. I couldn't wait to start 

over."

Neither the defendant nor Stovall testified. The defendant 

presented a case of misidentification. His former attorney 

testified that while interviewing Sheppard on May 20, 2011, 

Sheppard stated that he had spoken with Chase, Bamber, and Cooke

before they were interviewed at the police station on the 

morning of the shooting and that none of them had seen who shot 

the victim. The defendant's trial counsel argued that the 

identifications made by Harris, Cooke, and Chase were not 

credible. Defense counsel also underscored the absence of 

physical evidence connecting the defendant to the crime and 

argued that the defendant had to flee the Commonwealth for his 

own safety.

Discussion. 1. Motion to suppress. Prior to trial, the 

defendant filed a motion to suppress two letters, one that he 

sent to, and one he received from, his girl friend, while both 

the defendant and his girl friend were being held pending 

extradition to Massachusetts. The Virginia authorities seized 

the letters under the jail's policy prohibiting inmate-to-inmate 

correspondence without prior approval. The defendant argued 

that the letters were seized in violation of the First Amendment 

to the United States Constitution, as applied to the States 

through the Fourteenth Amendment to the United States 
12

Constitution. After conducting an evidentiary hearing, a judge 

denied the motion.

One witness, Lieutenant Richard Miles, an employee of the 

jail, testified at the evidentiary hearing on the motion. We 

recite the facts found or implicitly credited by the motion 

judge, supplemented by additional undisputed facts where they do 

not detract from the judge's ultimate findings. See 

Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 

Mass. 818 (2008).

On June 2, three days after the murder and the next day 

after the encounter with the victim's friends, the defendant was 

arrested in Virginia. His girl friend was with him at the time 

and, shortly thereafter, also was arrested on an outstanding 

warrant. At the jail, the defendant and his girl friend were 

held in separate units based on their gender. Male and female 

inmates were not permitted to communicate with each other. The 

jail's written policy precluded inmate-to-inmate correspondence 

by mail without prior approval.14 Inmates were notified of this 

policy, among others, when they were admitted to jail. The 

policies and procedures of the jail were established to ensure 

safety and security.

 

14 Specifically, the policy provided: "Inmate to inmate 

correspondence within the facility will only be approved when a 

prior family relationship is verified."
13

On June 17, 2010, Miles collected outgoing mail that had 

been placed in a window in the common room of the housing unit 

in which the defendant and seven other male inmates were being 

detained. One item of mail, an envelope addressed to, and with 

the same return address of, the defendant's girl friend (the 

return address and sending address were that of the jail)15

raised a "red flag." Miles confiscated the letter because, as 

indicated by the envelope's return address, "it was mail from a 

female [who obviously did not reside] in a housing unit that was 

male."

The jail's policy permitted an inmate's mail to be read by 

jail personnel only if the mail was first deemed to be 

contraband. Miles considered the letter contraband and opened 

it to identify the sender, as it appeared to have a female 

sender and only a male inmate in the unit would have authored 

it. He called out the defendant's name, but the defendant did 

not respond. Another inmate went to the defendant's cell and 

informed the defendant that his mail had been confiscated.

Miles returned to the defendant the envelope in which the 

letter had been contained, but Miles kept the letter itself. He 

then verified that the defendant's girl friend was housed at the 

jail, that she and the defendant were "codefendants," and that 

 

15 The envelope was addressed to "Cherily Nixon, 244 Uriah 

Branchway, Emporia, VA 23847," and had the return address of 

"Cherily Nixon, 244 Uriah Branchway, Emporia, VA 23847."
14

neither the defendant nor the defendant's girl friend had 

obtained permission to correspond. Miles read the letter16 and 

then returned to the defendant's cell to retrieve the envelope. 

Miles also confiscated a second letter from the defendant's cell 

(that letter was sent to the defendant from his girl friend).17 

Miles forwarded the letters to his supervisor.

The defendant maintains on appeal that his letter to his 

girl friend18 should have been suppressed because it was 

confiscated in violation of his right to free speech under the 

First Amendment. In reviewing a decision on a motion to 

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

absent clear error 'but conduct an independent review of [the 

judge's] ultimate findings and conclusions of law.'" 

Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting 

Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).

Courts "must take cognizance of the valid constitutional 

claims of prison inmates." Turner v. Safley, 482 U.S. 78, 84

 

16 The relevant portions of this letter appear earlier in 

this decision.

17 Lieutenant Richard Miles testified that, pursuant to a

policy of the Southside regional jail, the discovery of 

contraband authorizes a cell search.

18 Only some of the contents of the letter that the 

defendant had written to his girl friend were admitted in 

evidence over his objection at trial. The prosecutor did not 

seek to admit the letter that the defendant's girl friend had

written to him.
15

(1987). Because prisoners retain their constitutional rights, 

"[w]hen a prison regulation or practice offends a fundamental 

constitutional guarantee, . . . courts will discharge their duty 

to protect constitutional rights." Id., quoting Procunier v. 

Martinez, 416 U.S. 396, 405-406 (1974) (Martinez). Regulations, 

policies, or practices that restrict the written correspondence 

or mail of prisoners no doubt implicate the First Amendment's 

guarantee of freedom of speech. See, e.g., Martinez, supra at 

406, 408.

At the same time, "[p]rison [officials] are responsible for 

maintaining internal order and discipline, for securing their 

institutions against unauthorized access or escape, and for 

rehabilitating, to the extent that human nature and inadequate 

resources allow, the inmates placed in their custody." 

Martinez, 416 U.S. at 404. "The Herculean obstacles to 

effective discharge of these duties are too apparent to warrant 

explication." Id. Running a prison requires "expertise, 

comprehensive planning, and the commitment of resources, all of 

which are peculiarly within the province of the legislative and 

executive branches of government." Id. at 405. As such, 

"courts are ill equipped to deal with the increasingly urgent 

problems of prison administration and reform." Id. 

Consequently, "[w]here a [S]tate penal system is involved . . . 

courts have . . . additional reason to accord deference to the 
16

appropriate prison authorities." Turner, 482 U.S. at 85, citing 

Martinez, supra.

In Martinez, 416 U.S. at 398, 416, the United States 

Supreme Court first addressed the issue of prisoner mail when it 

considered the constitutionality of a California Department of 

Corrections regulation that censored inmate mail deemed to 

magnify grievances or contain other inflammatory statements. In 

determining whether "censorship of prisoner mail is justified,"

id. at 413, the Supreme Court set forth a two-part test:

"First, the regulation or practice in question must 

further an important or substantial governmental interest 

unrelated to the suppression of evidence. Prison officials

. . . must show that a regulation authorizing mail 

censorship furthers one or more of the substantial 

government interests of security, order, and 

rehabilitation. Second, the limitation of First Amendment 

freedoms must be no greater than is necessary or essential 

to the protection of the particular governmental interest 

involved."

Id.

Subsequently, in Turner, 482 U.S. at 81, the Supreme Court 

considered a Missouri regulation that forbade communication 

between inmates at different institutions. The Supreme Court 

took care to distinguish its earlier holding in Martinez, noting 

that the Martinez case "turned on the fact that the challenged 

regulation caused a 'consequential restriction on the First and 

Fourteenth Amendment rights of those who are not prisoners'" 

(emphasis in original). Turner, supra at 85, quoting Martinez, 
17

416 U.S. at 409. The Supreme Court upheld the challenged 

regulation and in so doing set forth a standard to be applied 

different from that stated in Martinez. Turner, supra at 89, 

93. Recognizing that courts must balance First Amendment rights 

of prisoners against legitimate penological governmental 

interests, the Supreme Court expressly adopted a deferential 

standard of scrutiny for the review of regulations and policies 

in the prison context that infringe on free speech rights under 

the First Amendment.19 Id. at 89. Specifically, the Supreme 

Court directs that, "when a prison regulation impinges on 

inmates' constitutional rights, the regulation is valid if it is 

reasonably related to legitimate penological interests." Id. 

Under Turner, the reasonableness inquiry focuses on several 

factors, none of which suggests a violation of the defendant's 

First Amendment rights in this case.

"The first Turner factor is multifold [and involves 

determining] whether the governmental objective underlying the 

regulations at issue is legitimate and neutral, and that the 

regulations are rationally related to that objective." 

Thornburgh v. Abbott, 490 U.S. 401, 414 (1989) (Abbott). The 

second factor requires determining whether alternative means 

 

19 We have adopted this standard. See Massachusetts 

Prisoners Ass'n Political Action Comm. v. Acting Governor, 435 

Mass. 811, 819 (2002), quoting Turner v. Safley, 482 U.S. 78, 89 

(1987).
18

exist for exercising the challenged right. Id. at 417. The 

third factor considers the "impact the accommodation of the 

asserted constitutional right will have on others (guards and 

inmates) in the prison." Id. at 418. Last, Turner stated that 

"the existence of obvious, easy alternatives may be evidence 

that the regulation is not reasonable, but is an 'exaggerated 

response' to prison concerns. . . . [I]f an inmate claimant can 

point to an alternative that fully accommodates the prisoner's 

rights at de minimis cost to valid penological interests, a 

court may consider that as evidence that the regulation does not 

satisfy the reasonable relationship standard." Id., quoting 

Turner, 482 U.S. at 90-91.

As an initial matter, the defendant argues that the letter 

itself was not contraband because it did not contain any 

physical items such as drugs or weapons. The term contraband, 

however, is not so narrowly construed and includes, in 

accordance with its ordinary meaning and usage, any item not 

approved for retention. See, e.g., 103 Code Mass. Regs. 403.06 

(2001) (defining contraband as "any item[s] not approved for 

retention by an inmate at an institution"). See also Webster's 

Third New International Dictionary 494 (1993) (defining 

"contraband" as "goods or merchandise the importation, 

exportation, or sometimes possession of which is forbidden"). 

Here, the letter was addressed to a female inmate and thus was 
19

sent in violation of the jail's policy prohibiting inmate-toinmate correspondence without prior approval. The letter was a 

prohibited item. Miles properly considered it contraband.

We turn now to application of the reasonableness test, 

commencing with an analysis of the first Turner factor. The 

policy's prohibition on inmate-to-inmate correspondence in the 

absence of a family relationship and where approval to 

correspond had not been first obtained is reasonably related to 

legitimate penological interests. Here, the policy was 

established to ensure safety and security within the prison. 

The policy recognizes that inmate-to-inmate correspondence has 

the potential to be significantly disruptive, as such 

correspondence may involve planned escapes, acts of violence, or 

other schemes in the cases of pretrial detainees, including 

witness intimidation or tampering with evidence before trial. 

See Turner, 482 U.S. at 91-92; Nasir v. Morgan, 350 F.3d 366, 

372 (3d Cir. 2003). These concerns justify implementation of 

the challenged policy. See Abbott, 490 U.S. at 404-405, 415, 

quoting Pell v. Procunier, 417 U.S. 817, 823 (1974) (regulations 

authorizing warden to reject inmate's subscription publication 

were aimed at protecting prison security, "a purpose [Supreme]

Court has said is 'central to all other corrections goals'"); 

Turner, supra at 81, 91 (prohibition on correspondence between 

inmates of different facilities is logically connected to 
20

legitimate security concerns); Martinez, 416 U.S. at 412-413 

("the legitimate governmental interest in the order and security 

of penal institutions justifies the imposition of certain 

restraints on inmate correspondence"); Farrell v. Peters, 951 

F.2d 862, 863 (7th Cir. 1992) (prison officials may exercise 

discretion over delivery of correspondence between inmates in 

different correctional facilities based on safety and security 

concerns).

Turning to neutrality, the Supreme Court has "found it 

important to inquire whether prison regulations restricting 

inmates' First Amendment rights operated in a neutral fashion, 

without regard to the content of the expression." Turner, 482 

U.S. at 90. Here, the prohibition on inmate-to-inmate 

correspondence applies to all inmate-to-inmate correspondence, 

without regard to the content of the correspondence. We thus 

conclude that the neutrality requirement is satisfied.20 See id.

Concerning the last part of the first Turner factor, the 

challenged policy is rationally connected to the legitimate 

safety concerns enunciated above. Of significance, the policy 

differentiates between inmates who are family members and 

 

20 The defendant contests neutral application of the policy 

because his girl friend was able to send a letter to him. The 

defendant points to no other instances where the policy was not 

enforced. Under the circumstances and on this record, the fact 

that the defendant's girl friend was able to send a letter to 

the defendant appears to be an isolated occurrence in which one 

parcel of mail inadvertently was not discovered and confiscated.
21

inmates who are not. Recognizing that there may be legitimate 

reasons for fellow inmates who are family members to 

communicate, the policy focuses "a limited class of other people 

with whom prison officials have particular cause to be 

concerned," Turner, 482 U.S. at 92, namely other inmates who are 

not family members. Because of the legitimate safety concerns 

enunciated above, and the dangers inherent in inmates of the 

same facility being able to freely converse, the challenged 

policy of limiting such correspondence to family members and 

requiring prior approval reasonably relates to maintaining order 

and security in the jail. While family members who are fellow 

inmates also may have ulterior motives behind their 

communications, the risk reasonably could be considered less 

likely than that concerning those inmates sharing no family 

background and is minimized by an approval process.

As to the second Turner factor, the defendant did not have 

an alternative means to exercise the challenged right because 

the defendant and his girl friend were not family members. We 

note, however, that in the defendant's case, the limitation on 

communication at the time was to be temporary, as he was 

awaiting extradition to Massachusetts. The policy, as applied 

to him, did not effect a permanent limitation on his right to 

correspond with his girl friend.
22

Next, concerning the impact of accommodating the asserted 

right if the policy is invalidated, we conclude that such 

accommodation would likely have a significant potential negative 

impact on jail personnel and other inmates. Internal 

correspondence to nonfamily members no doubt would increase, and 

with no confiscation and review of the content, there would be 

no way of knowing if concerted criminal activity were afoot, 

thus compromising security. Jail officials would not be able to 

prevent, deter, and discover threats, escape plans, or planned 

acts of violence. The safety of noncorresponding inmates would 

be at risk.

Last, the defendant contends that, as an alternative to 

enforcing the policy, Miles could have just reminded him about 

the policy and returned the letter to him. Such action, 

however, would obviate the need for the policy in the first 

instance and, again, would fail to uncover whether in fact any 

type of coordinated criminal activity was occurring. We are 

satisfied, therefore, that the policy is not an "exaggerated 

response" to the problem posed by inmate-to-inmate written 

correspondence. See Turner, 482 U.S. at 90-91. We conclude 

that an inmate does not have a First Amendment right to 

unmonitored written correspondence with another inmate at the 

same detention facility and that the policy did not violate 

First Amendment guarantees.
23

We address one additional argument made by the defendant. 

Relying on Abbott, 490 U.S. at 411-412, in which the Supreme 

Court noted that outgoing mail by its very nature does not "pose 

a serious threat to prison order and security," or a "danger to 

the community inside the prison" (emphasis in original), the 

defendant argues that his outgoing mail should be afforded 

greater constitutional protection than incoming mail. No doubt, 

some Federal courts, relying on Martinez, 416 U.S. at 413, have 

applied a different standard to the outgoing mail of prisoners 

as opposed to their incoming mail. See, e.g., Koutnik v. Brown, 

456 F.3d 777, 784 (7th Cir. 2006), cert. denied, 552 U.S. 809 

(2007) (inmates' outgoing mail scrutinized under Martinez

standard); Nasir, 350 F.3d at 371 (noting that many Federal 

courts apply Martinez standard to outgoing mail and Turner

standard to incoming mail). Other Federal courts, however, have

rejected such a distinction. See, e.g., Gassler v. Wood, 14 

F.3d 406, 410 n.6 (8th Cir. 1994) (rejecting distinction drawn 

by type of mail); Brewer v. Wilkinson, 3 F.3d 816, 824 & n.10 

(5th Cir. 1993), cert. denied, 510 U.S. 1123 (1994) (reasoning 

that Abbott suggests that Turner standard could apply to 

outgoing mail because in Turner, Court explained that when 

determining "whether the existence of other alternatives 

evidenced the unreasonableness of a prison regulation or 

practice, a court was not to employ a 'least restrictive means 
24

test'" set forth in Martinez). The latter approach, rejecting 

any distinction between outgoing and incoming mail, recognizes 

that outgoing mail may pose just as many dangers as incoming 

mail, including escape plans, illegal activities, and threats. 

See Smith v. Delo, 995 F.2d 827, 831 (8th Cir. 1993), cert. 

denied, 510 U.S. 1052 (1994). We need not offer our own 

resolution of the conflict, if any exists, of what standard of 

review to apply to outgoing mail as opposed to incoming mail, 

because the mail at issue in this case was addressed to a fellow 

inmate, thus rendering the mail not only outgoing mail, but also 

incoming mail. We point out that the Martinez decision did not 

address inmate-to-inmate correspondence. We note also, for 

comprehensiveness, that Abbott expressly overruled Martinez to 

the extent that it might support the drawing of a "categorical 

distinction between incoming correspondence from prisoners . . . 

and incoming correspondence from nonprisoners." Abbott, supra

at 413-414.

For the reasons stated, we discern no error in the denial 

of the motion to suppress.

2. Other errors. a. Jury instructions. The defendant 

argues error in the absence of an instruction on involuntary 

manslaughter based on reckless and wanton conduct. Because the 

defendant did not specifically request this instruction at 

trial, or object to the charge on the ground of its absence, we 
25

review whether there was error, and if so, whether it created a 

substantial likelihood of a miscarriage of justice. See 

Commonwealth v. Tolan, 453 Mass. 634, 648 (2009).

"An instruction on [involuntary] manslaughter is required 

where any view of the evidence will permit a finding of 

manslaughter and not murder." Commonwealth v. Sires, 413 Mass. 

292, 301 (1992). "In deciding whether a manslaughter 

instruction is supported by the evidence, all reasonable 

inferences must be resolved in favor of the defendant." 

Commonwealth v. Vanderpool, 367 Mass. 743, 746 (1975). As 

relevant here, "[i]nvoluntary manslaughter is an unlawful 

homicide unintentionally caused by an act which constitutes such 

a disregard of probable harmful consequences to another as to 

amount to wanton or reckless conduct."21 Id. at 747. However, 

"[w]here the felony-murder rule applies, generally the defendant 

is not entitled to an instruction on manslaughter." 

Commonwealth v. Evans, 390 Mass. 144, 151 (1983).

The defendant's claim that he was entitled to an 

instruction on involuntary manslaughter flows in part from his 

contention that the shooting could have been accidental. In 

 

21 Involuntary manslaughter may be based on one other 

theory, namely, an unintentional killing resulting from "a 

battery not amounting to a felony which the defendant knew or 

should have known endangered human life." Commonwealth v. 

Sanna, 424 Mass. 92, 105 (1997), quoting Commonwealth v. Pierce, 

419 Mass. 28, 33 (1994).
26

that regard, he points out that several witnesses, Harris, 

Cooke, and Bamber, testified that the victim's automobile moved 

before the gun discharged. Thus, the defendant contends, the 

movement of the victim's automobile could have startled him or 

caused his hand to jerk in such a way that the gun "went off." 

This assertion of an accidental shooting is nothing more than a 

recasting of the argument made below that correctly was rejected 

by the trial judge. See Evans, 390 Mass. at 151-152 ("A 

defendant who kills a victim in the commission or attempted 

commission of a robbery, while the defendant is armed with a 

gun, is guilty of murder by application of the felony-murder 

rule. . . . The fact that, according to the defendant, the gun 

was discharged accidently, is of no consequence").

The defendant also contends that an involuntary 

manslaughter instruction based on wanton or reckless conduct was 

warranted because there was evidence that he was not engaged in 

the predicate felony, namely, attempted armed robbery. 

Specifically, the defendant asserts that the jury could have 

concluded, based on an alternative view of the evidence, that 

the defendant did not intend to rob the victim. He points to 

Chase's testimony that before the shooting, he heard the 

defendant say, "Open the door or I'll kill you," and Bamber, who 

heard someone state, "Unlock the door before I shoot." This 

testimony, he asserts, contradicted the only evidence of an 
27

attempted robbery, which the defendant states was Cooke's 

testimony that the defendant said something to the effect of, 

"Give me what you have." Certainly, the jury were free to 

reject Cooke's testimony. The defendant's argument, however, 

ignores other evidence of his intent to rob, namely, his letter 

in jail to his girl friend in which he complained that he "hated 

being broke," that she reminded him that he "wasn't shit and 

. . . didn't have shit," and that these circumstances caused him 

"to not think clearly and to go out and do some dumb shit." 

Defense counsel argued in his closing that the letter should not 

be construed as inculpatory, but the defendant did not testify. 

Nor was evidence presented to refute the reasonable inference of 

a financial motive for attempted robbery that the jury could 

have drawn from the letter's content. Thus, contrary to the 

defendant's contentions, no view of the evidence supported an 

involuntary manslaughter instruction on the theory that an

attempted armed robbery had not occurred.

Assuming, however, the absence of evidence of an intent to 

rob the victim, the defendant does not explain how his conduct 

otherwise qualified as wanton or reckless. It was undisputed 

that whoever killed the victim had a gun because, irrespective 

of what any witnesses saw, the unchallenged evidence of the 

medical examiner established that the victim had been shot and 

died as a result of a gunshot wound. There was no error in the 
28

judge not instructing, sua sponte, on involuntary manslaughter 

based on wanton or reckless conduct.

b. Ineffective assistance of trial counsel. The defendant 

argues that his trial counsel was constitutionally ineffective 

because she did not request a jury instruction on involuntary 

manslaughter based on wanton or reckless conduct. Where we have 

reviewed and rejected the defendant's contention that an 

involuntary manslaughter instruction based on wanton or reckless 

conduct was warranted, this claim cannot serve as the basis for 

a claim of ineffective assistance of trial counsel. See 

Commonwealth v. Silva, 455 Mass. 503, 528 (2009).

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 discern no basis on which to grant the defendant 

relief.

Judgments affirmed.