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SJC-11869

SJC-11870

COMMONWEALTH vs. CHARLES MENDEZ

(and eleven companion cases1).

Bristol. October 11, 2016. - February 22, 2017.

Present: Gants, C.J., Hines, Gaziano, Lowy, & Budd, JJ.

Homicide. Firearms. Robbery. Assault and Battery by Means of 

a Dangerous Weapon. Felony-Murder Rule. Constitutional 

Law, Search and seizure, Reasonable suspicion. Search and 

Seizure, Reasonable suspicion. Practice, Criminal, Capital 

case, Motion to suppress, Trial of indictments together, 

Argument by prosecutor, Instructions to jury. Witness, 

Credibility. Jury and Jurors.

Indictments found and returned in the Superior Court 

Department on January 7, 2011, and February 11, 2011.

Pretrial motions to suppress were heard by Renee P. Dupuis, 

J., and a motion for joinder was also heard by her; and the 

cases were tried before D. Lloyd Macdonald, J.

Cathryn A. Neaves for Charles Mendez.

Jennifer H. O'Brien for Tacuma Massie.

Yul-mi Cho, Assistant District Attorney, for the 

Commonwealth.

 

1 Five against Charles Mendez and six against Tacuma Massie.
2

BUDD, J. On the evening of November 18, 2010, Edward 

Platts was shot and killed while sitting in his motor vehicle at 

a housing complex in Fall River. The defendants, Charles Mendez 

and Tacuma Massie, were each indicted on charges of (1) murder 

in the first degree2; (2) carrying a firearm without a license; 

(3) carrying a loaded firearm without a license; and (4) armed 

robbery. They additionally were charged with assault and 

battery by means of a dangerous weapon and armed robbery on 

separate indictments in connection with a separate incident 

involving a different individual. The motion judge denied the 

defendants' motions to suppress evidence seized in connection 

with their warrantless stop. At the conclusion of a joint jury 

trial in September, 2013, the defendants were convicted of all 

charges.

Each defendant filed a timely notice of appeal. Both

assert the following errors: the denial of his motion to 

suppress; the joinder at trial of the indictments for two 

separate incidents; and portions of the prosecutor's closing 

argument. Massie further argues that there was insufficient 

evidence to convict him of the armed robbery and felony-murder. 

Each defendant separately asserts additional errors pursuant to 

Commonwealth v. Moffett, 383 Mass. 201, 208 (1981).

 

2 Both defendants were charged on a theory of felony-murder; 

Mendez was also charged on a theory of deliberate premeditation.
3

We affirm the defendants' convictions and decline to 

exercise our extraordinary power under G. L. c. 278, § 33E.

1. Background. We summarize the facts in the light most 

favorable to the Commonwealth, reserving certain details for 

discussion of specific issues.

On the evening of November 18, 2010, just after 6 P.M., the

defendants ambushed and robbed Ryan Moitoso in a parking lot.

Moitoso thought he was meeting Mendez's girl friend to sell her 

marijuana. The girl friend drove the defendants near the area 

where she was to meet Moitoso and let them out of her vehicle. 

As Moitoso spoke with the girl friend, the defendants approached 

him from behind. One of them hit him in the head with a hard 

metal object and told him to empty his pockets. Moitoso turned 

over some cash and marijuana, and heard a clicking noise that

sounded like a gun being cocked, before being allowed to return 

to his vehicle. The defendants got back into the girl friend's 

vehicle, and she drove away. When she asked what had happened, 

one of the defendants replied, "That's life," and tossed a bag 

of marijuana into the front passenger area.

Next, the girl friend dropped the defendants off at a 

nearby housing complex where Massie had arranged to meet Platts

(victim) on the pretext of wanting to make a marijuana purchase. 

The defendants intended to rob the victim of the approximately 

$4,000 that, Massie had learned, he was carrying that day. 
4

Prior to the meeting, a witness was parked in the housing 

complex and, while sitting in his vehicle, observed two men 

fitting the description of the defendants walk by him. The 

victim, who had a puppy with him, parked his vehicle behind the 

witness's vehicle. The witness then observed the same two men 

walk toward the back of his vehicle. Within seconds, the 

witness heard a gunshot and a vehicle engine accelerate, and

then he felt the victim's vehicle hit the back of his vehicle.

The witness telephoned 911 and told the dispatcher that a man 

had been shot. A resident of the complex looked out of her

window at the sound of the gun shot to observe an individual 

matching Mendez's description get out of the passenger side of 

the victim's vehicle and quickly leave the scene carrying

something clutched to his chest.

In the meantime, Mendez's girl friend received several

telephone calls from Massie between 6:41 and 6:49 P.M. She 

returned to the complex and picked up both Massie and Mendez,

pulling away quickly from the curb where they entered her 

vehicle. A State trooper who was in the housing complex

investigating the 911 call observed the vehicle's hasty 

departure, and followed it. See part 2.a, infra.

When the defendants were arrested, both were carrying 

handguns; Massie's was loaded. Massie had more than $4,000 in 

cash, Mendez's clothes were stained with the victim's blood, and 
5

police found the victim's puppy in the vehicle. Police found 

Mendez's hat in the victim's vehicle.

The victim was shot at close range behind his right ear as 

he sat in his vehicle. At trial, Mendez claimed that the victim 

had drawn a gun on him and, after a struggle, he shot the victim 

in self-defense. He also claimed that the handgun that he had 

had in his possession when he was apprehended belonged to the 

victim.

2. Discussion. a. Motion to suppress. The defendants 

claim error in the denial of their motions to suppress evidence 

seized as a result of a warrantless stop that took place soon 

after the shooting. The constitutionality of the stop depends 

on the police officer having reasonable suspicion of criminal 

activity at the time it occurred. Commonwealth v. DePeiza, 449 

Mass. 367, 371 (2007). Reasonable suspicion "must be grounded 

in 'specific, articulable facts and reasonable inferences 

[drawn] therefrom' rather than on a 'hunch.'" Id., quoting 

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

When reviewing a ruling on a motion to suppress, "we accept 

the [motion] judge's subsidiary findings of fact absent clear 

error and leave to [that] judge the responsibility of 

determining the weight and credibility to be given oral 

testimony presented at the motion hearing." Commonwealth v. 

Wilson, 441 Mass. 390, 393 (2004). However, "[w]e review 
6

independently the application of constitutional principles to 

the facts found." Id.

We summarize the facts found by the motion judge. After 

the witness's vehicle was hit by the victim's, the witness 

telephoned 911 to report that a person had been shot in the head 

in his vehicle and was dead, and that the individuals involved 

had fled.3 A State police trooper with the violent fugitive 

apprehension section, who was dressed in plain clothes and

traveling nearby in an unmarked police cruiser, heard the police 

transmission of this report and headed toward the housing 

development. Approximately two blocks from the development he 

observed a person moving quickly toward a parked vehicle. 

Without stopping, the trooper relayed the registration plate

number and learned that the vehicle was registered to a woman 

with no criminal history. Moments later, and less than ten 

minutes after the initial 911 transmission, he arrived at the 

complex and began to patrol, looking for suspicious activity.

As the trooper drove through the housing complex, which he 

found to be unusually quiet, he observed an individual, later 

identified as Mendez, make a "beeline" to a white Honda Civic

automobile that was stopped at the curb with its engine running. 

Mendez entered at the rear passenger side of the vehicle, which 

 

3 The witness told the 911 operator that the perpetrator or 

perpetrators fled in another motor vehicle. In fact, the 

defendants initially fled on foot.
7

started to pull away quickly, before Mendez had fully entered or 

closed the door. Because of what appeared to the trooper to be 

a very unusual absence of any other people and lack of any other 

activity on the streets or sidewalks in the housing complex, and 

the vehicle's quick departure from the area, the trooper 

followed the vehicle while it traveled in a "serpentine route," 

meandering through the city streets.4 Meanwhile, police who had 

responded to the scene at the housing complex confirmed to the 

trooper that a man had been shot in the head and killed.

While following the vehicle, the trooper reported its

registration plate number and learned that an individual 

associated with the address of the vehicle's owner had "lots of 

violence" on his record, including a firearms charge, and 

 

4 Mendez claims that it was error for the motion judge to 

find that there were no other suspect vehicles in the area when 

the trooper saw the white Civic because the trooper earlier had 

observed and relayed the registration plate number of another 

vehicle that was located two blocks away from the complex and 

had its motor running. There was no error. The motion judge 

made clear in her findings that, aside from the first vehicle, 

which the trooper had eliminated from suspicion before he even 

saw Mendez, the trooper "did not observe a pedestrian, a car 

containing people, a running motor vehicle or any other normal 

activity for that time of day in such a large housing complex." 

Additionally, Mendez points to no testimony that indicates this 

vehicle's motor was running. Mendez further contends that there 

was no basis for the judge's finding that residents of the 

housing development stayed inside after the shooting because 

they were afraid of being shot. This finding, even if 

conclusory, is a reasonable inference given the uncontested fact

that, according to the trooper and credited by the judge, there 

was no activity to speak of in the area at the time the white 

vehicle made its hasty exit.
8

pending drug charges. The trooper, who could see that there 

were two persons seated in the back of the vehicle, radioed for 

backup. Approximately four miles away from the housing complex, 

the driver of the vehicle stopped in front of a three-family 

home but kept the motor running. As the trooper was without 

backup or a place to park, he stopped his vehicle in the middle 

of the street and waited. Approximately fifteen to thirty

seconds later, the two defendants got out of the back seat of

the vehicle at the same time and turned to face him. They were 

speaking to one another and both had their hands in their jacket 

pockets. In fear of his safety, the trooper got out of his 

vehicle, showed his badge and said, "Police, don't move." The 

two men fled in opposite directions. Mendez ran toward the 

trooper but soon returned to the white vehicle, getting in and 

telling the driver to "take off." The trooper drew his weapon 

and ordered the driver, later identified as Mendez's girl 

friend, to shut off the motor; she did so. Once another officer 

arrived, police recovered a handgun that was tucked into 

Mendez's waistband.

In the meantime, a third officer saw Massie, who was less 

than one block away from the white vehicle and running with one

hand in his pocket. The officer chased him and ordered him to 

stop. Massie did not comply, but he was apprehended; he was 

carrying a loaded semiautomatic pistol and cash.
9

All parties agree that both defendants were seized in a 

constitutional sense when the trooper announced that he was a 

police officer and ordered the men not to move. On appeal, the 

defendants argue that the trooper stopped them on a hunch rather 

than reasonable articulable suspicion of criminal activity. 

They claim that the information available to the trooper should 

not have caused him to follow them; that that they could just as 

easily have been on a "leisurely" drive through the city, 

without any particular place to be; and that when the vehicle 

finally stopped, all the trooper observed was two men getting 

out and looking into the headlights of a vehicle parked behind 

them in the street, with their hands in their pockets due to the 

cold weather.

Given that "[s]eemingly innocent activities taken together 

can give rise to reasonable suspicion," Commonwealth v. Watson, 

430 Mass. 725, 729 (2000), and that "[t]he gravity of the crime 

and the present danger of the circumstances may be considered in 

the reasonable suspicion analysis," Commonwealth v. Depina, 456 

Mass. 238, 247 (2010), the trooper clearly had reasonable 

suspicion for the stop. See Commonwealth v. Meneus, 476 Mass. 

231, 239 (2017) (violent nature of crime relevant when coupled 

with "totality of the information known to police, including the 

defendant's geographical and temporal proximity to the scene of 
10

the crime and his suspicious behavior in the wake of the 

shooting").

Police received a 911 call from a witness who identified 

himself and who relayed firsthand knowledge of what he believed 

to be a fatal shooting in a housing complex. See Commonwealth

v. Stoute, 422 Mass. 782, 790-791 (1996). In less than ten 

minutes, the trooper was driving through the housing complex, 

having already eliminated a suspect but on the lookout for 

others.

5 See Depina, 456 Mass. at 246. Mendez's rush to enter 

the motor vehicle and its subsequent hasty exit comprised the 

only activity that the trooper observed in the housing complex.

6 

See Commonwealth v. Quinn, 68 Mass. App. Ct. 476, 480 (2007). 

 

5 Massie places much weight on the fact that the witness's 

report of two people fleeing in a vehicle immediately after he 

heard the gunshot was at odds with the trooper's observation 

(and suspicion) of a vehicle pulling quickly away almost ten

minutes later. As it turned out, the defendants initially fled 

on foot. That the witness did not get the description exactly 

right about what happened in the immediate aftermath of the 

shooting does not mean that the trooper was obliged to ignore 

his own observations. See Commonwealth v. Mercado, 422 Mass. 

367, 368, 369-371 (1996) (finding officer's suspicion reasonable 

despite conflicting descriptions of shooting suspects).

6 Massie's reliance on Commonwealth v. Warren, 475 Mass. 530 

(2016), is misplaced. There we held that it was unreasonable to 

stop pedestrians twenty-five minutes after, and one mile away 

from, a breaking and entering where they did not match the 

description provided to police. Id. at 535-536. Here, the 

white vehicle was temporally and geographically closer to the 

crime and there was no description of the suspects. Compare 

Commonwealth v. Depina, 456 Mass. 238, 246-247 (2010) 

(reasonable to stop person matching vague description of shooter 

when found approximately ten minutes after gunfire and three 

blocks away).
11

He did not need reasonable suspicion to follow the motor 

vehicle. See Commonwealth v. Williams, 422 Mass. 111, 116 

(1996) ("No degree of suspicion, reasonable or otherwise, was 

constitutionally required for the police to commence 

surveillance" by following suspect vehicle).

As the trooper trailed the defendants for eight and onehalf minutes and approximately four miles, he learned additional 

information that contributed to his suspicion. See Commonwealth

v. Wren, 391 Mass. 705, 707 (1984) ("[a] hunch will not 

suffice"). The vehicle he was following had returned to a 

normal speed but was traveling in a "serpentine route" through 

the city, without an apparent destination. See Watson, 430 

Mass. at 730. When he relayed the vehicle's license plate, he 

learned that it was associated with a person whose criminal 

record reflected assault and battery and firearms charges.7 See 

Commonwealth v. Wright, 85 Mass. App. Ct. 380, 383 (2014). 

Finally, police who had responded to the scene at the housing 

 

7 The defendants argue that it was error to find that the 

criminal record could influence the trooper's calculus because 

all of the individual's violence-related charges had been 

dismissed, including the firearms charge. There was no error; 

police knowledge that a criminal history includes weaponsrelated charges can add to reasonable suspicion. See 

Commonwealth v. Gomes, 453 Mass. 506, 512-513 (2009). See also 

Commonwealth v. Dasilva, 66 Mass. App. Ct. 556, 561 (2005) 

("police knowledge of a person's arrest record or unspecified 

'criminal record' [can] be considered in a reasonable suspicion 

evaluation").
12

complex confirmed to the trooper that a person had been fatally 

shot in the head. See Mercado, 422 Mass. at 368-370.

By the time Massie and Mendez, who had simultaneously 

gotten out of their vehicle, stood face-to-face and staring at 

the trooper with their hands in their pockets, the fear that the 

two had participated in the killing and presented a possible 

threat to his safety and that of the public was eminently 

reasonable. See Scott, 440 Mass. at 648, citing Terry v. Ohio, 

392 U.S. 1, 21 (1968) (court analyzes justification for stop at 

time it occurs).

8

b. Joinder of charges. The defendants challenge the

motion judge's decision to join for trial the charges related to 

the robbery of Moitoso with those related to the robbery and 

shooting of Platts, arguing that it amounted to an unfairly 

prejudicial admission of propensity evidence. We review the 

motion judge's decision for an abuse of discretion. See 

Commonwealth v. Gray, 465 Mass. 330, 335, cert. denied, 134 

S. Ct. 628 (2013).

 

8 Massie argues that his subsequent stop was unreasonable 

because the officer who apprehended him had no reasonable 

suspicion to do so as all he observed was Massie running with 

his hand in his front right pocket. This argument has no merit; 

he had already been stopped by the trooper. In any case, the 

trooper's knowledge that Massie was a suspect in a shooting is 

imputed to the other officer. See Commonwealth v. Quinn, 68 

Mass. App. Ct. 476, 480-481 (2007). The subsequent frisk was 

likewise justified. See Commonwealth v. Vasquez, 426 Mass. 99, 

102-103 (1997).
13

Upon motion, joinder is appropriate where offenses are 

related unless such joinder "is not in the best interests of 

justice." Mass. R. Crim. P. 9 (a) (3), 378 Mass. 859 (1978). 

Offenses are related for the purposes of joinder "if they are 

based on the same criminal conduct or series of criminal 

episodes connected together or constituting parts of a single 

scheme or plan" (citation omitted). Commonwealth v. Hernandez, 

473 Mass. 379, 393 (2015). Factors to take into consideration 

include "factual similarities, closeness of time and space, and 

'whether evidence of the other offenses would be admissible in 

separate trials on each offense'" (citation omitted). Id.

Here there was considerable evidence demonstrating that the 

two incidents were related. In each case, a jury could have 

found that the defendants set up meetings with the victims under 

the pretense of buying marijuana and instead robbed them using a 

gun (even though the second robbery ended with the victim being 

killed). In addition, the events took place within less than 

one hour of each other and within a ten-minute drive of each 

other. See Hernandez, 473 Mass. at 393 (separate robberies 

occurring within time span of five hours and sharing common 

method of coercion were related for purposes of joinder).

Further, evidence of each robbery would be admissible in 

the trial of the other if the trials were separated. Although 

evidence of one crime is inadmissible to show a propensity to 
14

commit other such crimes, prior bad act evidence may be 

admissible if relevant for another purpose such as motive, state 

of mind, or a common scheme or pattern. Commonwealth v. Walker, 

442 Mass. 185, 202 (2004). Evidence of the robbery of the 

victim is certainly reflective of a common scheme or pattern in

a trial of the robbery of Moitoso, and vice versa.

Nor have the defendants shown that they were unfairly 

prejudiced by the joinder. See Commonwealth v. Sullivan, 436 

Mass. 799, 805 (2002). The judge asked the venire during voir 

dire to comply with an instruction that evidence of each robbery 

be considered independently, and that the evidence of one not be 

taken as proof of propensity to commit the other. During his 

instructions to the jury prior to deliberations, the judge 

explained that evidence of the two incidents was not to be used 

to prove that the defendants had a propensity to commit the 

crimes of armed robbery or murder and that they were to consider 

each episode separately. "The jury are presumed to follow the 

judge's instructions." Commonwealth v. Andrade, 468 Mass. 543, 

549 (2014).

The motion judge did not abuse her discretion in joining 

the indictments for trial.

c. Closing argument. The defendants point to two aspects 

of the prosecutor's closing argument as error.
15

i. Comments on Mendez's testimony. Both defendants argue 

that the prosecutor made improper comments in his closing 

regarding Mendez's testimony.9 During direct examination, Mendez 

admitted to assaulting and robbing Moitoso. He testified that 

the plan then was to meet the victim at the housing development 

and purchase approximately twelve pounds of marijuana from him. 

Mendez further testified that while he was in the victim's 

vehicle the two men had a disagreement, the victim pulled out a 

gun, and, in a struggle for the gun, Mendez shot the victim in 

self-defense. He went on to say that after the shooting, he got 

out of the vehicle with the gun, then returned for his hat 

(which had fallen off) but instead grabbed the puppy. He then 

met up with Massie, who had been waiting with the over $4,000 in 

cash they had saved to buy the marijuana.

On cross-examination, Mendez testified that his initial 

account to police after his arrest was not consistent with his 

trial testimony because he had lied to the investigators on the 

night of the victim's death. Among other things, he told police 

that because of his drug use, he was unable to recall the events 

of the evening, and specifically did not remember going to a 

housing complex, carrying a gun, or being involved in a 

shooting.

 

9 Massie did not testify, but his counsel endorsed Mendez's 

testimony in closing argument.
16

In his closing argument, the prosecutor suggested that 

Mendez conformed his testimony to the Commonwealth's evidence:

"[W]hen you talk about the night when he got caught 

with the gun on him, there's a puppy, and he's brought down 

to the station, oh, I lied about everything. Of course he 

lied about everything because he didn't know what we knew, 

the police. And of course, then as the evidence is 

developed, he now fits it all in a nice little package for 

you. . . . Evidence is what is said, not then what you 

want to try to shape it at the end." (Emphases added.)

The defendants claim that the prosecutor's statements

improperly commented on Mendez's right to confront witnesses by 

being present in the court room during the trial. Because 

neither defendant objected to the closing argument, we review to 

determine if there was error or misconduct, and if so, whether 

it created a substantial likelihood of a miscarriage of justice.

Commonwealth v. Taylor, 455 Mass. 372, 377 (2009).

In arguing error, the defendants point to Commonwealth v.

Person, 400 Mass. 136 (1987), and Commonwealth v. Alphonse, 87 

Mass. App. Ct. 336 (2015), where convictions were overturned 

because, in each case, the prosecutor improperly argued that the 

defendant tailored his testimony to match the evidence 

presented. These cases are distinguishable.

"[A] prosecutor may, if there is a basis in the evidence 

introduced at trial, attack the credibility of a defendant on 

the ground that his testimony has been shaped or changed in 

response to listening to the testimony of other witnesses." 
17

Commonwealth v. Gaudette, 441 Mass. 762, 767 (2004). See 

Commonwealth v. Sherick, 401 Mass. 302, 305 (1987). Here, where 

the defendant made pretrial statements to police that were 

different from his trial testimony, the prosecutor had a basis 

in the evidence for pointing out that his trial testimony did 

not match his prior statements to police, and instead conformed 

to the Commonwealth's evidence. By contrast, in Person, 400 

Mass. at 137, 138, 142, the defendant made no pretrial 

statements; thus, while the prosecutor intimated that he had 

fabricated his testimony, there was no evidence presented at 

trial to support this argument. Accord Alphonse, 87 Mass. App. 

Ct. at 336, 339 (no evidence to support prosecutor's assertion 

that defendant had tailored his version of events to testimony 

of other witness). Given Mendez's pretrial statements in this 

case, the prosecutor fairly commented on "the quality of the 

evidentiary picture the defendant was trying to paint." 

Commonwealth v. Moore, 408 Mass. 117, 132 (1990). There was no 

error.

ii. Arguing facts not in evidence. Massie asserts that 

there was no adequate basis in evidence for the prosecutor to 

argue in his closing that Massie had been in the back seat of 
18

the victim's vehicle, or that Mendez had shot the victim because 

he wanted the puppy.10

"[A] prosecutor may analyze the evidence and suggest 

reasonable inferences the jury should draw from that evidence."

Commonwealth v. Semedo, 456 Mass. 1, 13 (2010). Here, there was 

evidence from which the jury could infer that Massie had been 

seated in the back seat of the victim's vehicle just before the 

shooting, including the fact that Massie set the meeting up via 

several telephone calls to the victim, and the witness 

testified that he saw both men walk toward the victim's vehicle 

just before the gun was fired. To be sure, there was evidence 

tending to prove that Massie was not in the vehicle at the exact 

time of the shooting (e.g., the fact that there was no blood on 

his clothing, and only Mendez was seen exiting the vehicle after 

the shot had been fired). However, contrary to Massie's claim, 

this evidence supports, rather than negates, the prosecutor's 

version of events, i.e., that Massie left the vehicle with the 

cash prior to the shooting.

There was also evidence from which the jury could infer 

that Mendez shot the victim because of the puppy. There was 

evidence that Massie had left the vehicle with the cash the 

 

10 The prosecutor stated: "Massie now has got the money, 

he's out of the car [running]. [Mendez] . . . now wants the 

dog. And a tussle, struggle, whatever, you're not getting the 

dog. Bang, he's shot in the head. What does he do, and why is 

that, as you know why, the purpose was what he wanted."
19

defendants had planned to steal, and it is a fair inference that 

there would have been little, if anything, left to argue about. 

The fact that Mendez shot the victim and then took the puppy 

provided further evidence from which the jury could infer that 

Mendez shot the victim because he wanted the puppy.11 There was 

no error.

d. Insufficient evidence. Massie argues that the evidence 

in support of his convictions of the armed robbery and felonymurder of the victim was impermissibly thin. He claims that the 

$4,120 in cash he was carrying at the time of his arrest could 

not have come from the victim because it was not folded and 

sectioned as described by a witness who testified to seeing the 

victim with the cash earlier in the day. This, he asserts, plus 

the fact that other items in the vehicle were not taken ($124 in 

cash found in the victim's pocket and several small bags of 

marijuana), proves the defendants did not rob, or intend to 

murder, the victim. To succeed in a claim for insufficient 

evidence, Massie must show that, in viewing the evidence in the 

light most favorable to the Commonwealth, no rational trier of 

fact could have found the essential elements of the crimes 

 

11 The prosecutor offered a hypothetical scenario complete 

with a hypothetical statement made by the victim before he was 

shot. The trial judge appropriately reminded the jury that 

closing arguments are not evidence, and instructed them to 

ignore the suggestion that the victim had told Mendez, "You're 

not getting the dog."
20

beyond a reasonable doubt. See Commonwealth v. Latimore, 378 

Mass. 671, 677-678 (1979). This he is unable to do.

Evidence of the armed robbery of the victim viewed in the 

light most favorable to the Commonwealth included the 

following.

12 Massie and Mendez earlier robbed Moitoso with a 

gun. Thereafter, Massie arranged to meet the victim at the 

housing complex. He knew that the victim had a large sum of 

cash with him through conversations the two had earlier in the 

day. Massie was seen walking toward the victim's vehicle and 

was carrying a gun.

That there was an inconsistency between a witness's 

observation and the actual organization of the cash when it was 

recovered from Massie13 does not prove that the victim was not 

robbed. "If the evidence lends itself to several conflicting 

interpretations, it is the province of the jury to resolve the 

discrepancy and determine where the truth lies" (quotation and 

citation omitted). Platt, 440 Mass. at 401. Here there was 

more than enough circumstantial evidence for the jury to 

 

12 To make a case for felony-murder, the Commonwealth must 

only establish that Massie participated as a joint venturer in 

an armed robbery of the victim, and that the victim was killed 

in furtherance of that robbery. See, e.g., Commonwealth v. 

Kilburn, 426 Mass. 31, 34-37 (1997).

13 A witness testified that she had seen victim with his 

money wrapped in blue and manila rubber bands earlier in the 

day. The cash recovered from Massie was folded and wrapped in a 

single red rubber band.
21

conclude that both defendants committed armed robbery against 

the victim. They could have concluded that the victim 

reorganized the cash prior to meeting with the defendants or 

that the witness who saw the cash was mistaken. The jury also 

could have concluded that departing quickly with the large

amount of cash was more important than grabbing the small bags 

of marijuana and checking the victim's pockets for additional 

money.

"Whether an inference is warranted or is impermissibly 

remote must be determined, not by hard and fast rules of law, 

but by experience and common sense" (citation omitted).

Commonwealth v. Giang, 402 Mass. 604, 609 (1988). Thus, 

although the jury were free to adopt the defendants' version of 

events, they were also free to reach a different rational 

result. Platt, 440 Mass. at 401.

e. Moffett claims. Each defendant raises separate 

arguments pursuant to Moffett, 383 Mass. at 208. First, Mendez 

complains that his due process rights were violated when a 

witness to the Moitoso robbery was allowed to testify because he 

was not credible. The credibility of witnesses is for the jury 

to decide. Commonwealth v. Watkins, 473 Mass. 222, 229 (2015). 

The defendants had the opportunity to explore the issue of the 

witness's credibility during cross-examination, and argue it 

during closing arguments. There was no error.
22

Mendez next argues that his pretrial counsel was

ineffective where, at a motion to suppress hearing, the attorney 

told the judge that he was unprepared to comment on the 

Commonwealth's motion for joinder. As the court gave counsel

the opportunity to substantively oppose the motion at a later 

date both orally and in writing, the argument is without merit.

Mendez also contends that he was deprived of the right to 

an impartial jury where the Commonwealth improperly staged a 

vehicle for the jury to observe during a view of the crime 

scene. Upon objection, the judge struck that portion of the 

view, and told the jury to disregard it; Mendez does not argue 

that the jury were unable to do so. See Andrade, 468 Mass. at 

549.

Finally, Mendez claims that it was error for the trial 

judge to refuse to remove a juror who asked a question during 

the view that he contends demonstrated a "pro-government 

mindset."

14 The judge denied the request, concluding that the 

juror's question did not "reasonably suggest[] prejudice." The 

judge's decision is entitled to deference where he had "the 

advantage of face to face evaluation." See Commonwealth v. 

Peppicelli, 70 Mass. App. Ct. 87, 94 (2007) (decision whether to 

 

14 After counsel pointed out security cameras at the housing 

complex, a juror asked counsel if they had been working on the 

day in question.
23

dismiss juror reviewed for abuse of discretion or other error of 

law). There was no abuse of discretion.

Massie's three Moffett claims concern the jury

instructions. He first argues that the immunized witness 

instruction regarding Moitoso was reversible error, as it 

improperly bolstered his credibility. The instruction 

accurately described how Moitoso obtained immunity, and it was 

preceded by an instruction that the jury may consider any 

promises, rewards, or inducements made when assessing witness 

credibility. See Commonwealth v. Dyous, 436 Mass. 719, 727 

(2002) ("[W]e do not require that a judge give cautionary 

instructions specifically mentioning a particular immunized 

witness. . . . Rather we consider whether the charge, as a 

whole, adequately covers the issue" [quotation and citations 

omitted).

Second, Massie contends that the judge failed to instruct 

the jury that the Commonwealth had the burden of proving its 

case against him on a theory of felony-murder beyond a 

reasonable doubt. In fact, the judge properly instructed the 

jury, first describing the Commonwealth's burden of proof and 

later describing what the Commonwealth had to prove.

Finally, Massie argues that, regarding the lesser included 

offense of felony-murder in the second degree, the judge should 

have instructed the jury that if they found the elements were 
24

satisfied, they were required to find him guilty of the lesser 

included offense. This is an inaccurate statement of the law, 

as jurors have a duty to return a guilty verdict of the highest 

crime proved beyond a reasonable doubt, here felony-murder in 

the first degree. Commonwealth v. Kirwan, 448 Mass. 304, 319 

(2007). There was no error.

f. Review pursuant to G. L. c. 278, § 33E. We have

reviewed the entire record and find no reason to exercise our 

extraordinary power to reduce the verdict for either defendant

or grant a new trial.

Judgments affirmed.