4th Amendment, criminal law, Editor Blog, Fourth Amendment, Mass. Crim. Dig.

Mass. Crim. Dig.: Commonwealth v. Vacher

Commonwealth v. Vacher, 469 Mass. 425 (2014)

I. Facts

On December 16, 2008, sixteen year-old Jordan Mendes’s body was found burning in a pit in Hyannis. Mendes was stabbed in the neck and face twenty-one times, and was shot in the chest. The previous day, he went to his half-brother Charlie’s home on Arrowhead Drive after school. The defendant, Robert Vacher, was dropped off at Charlie’s home with Charlie and John R. around the same time as Jordan. That evening, Charlie arranged to test drive a black Nissan Maxima that a classmate was selling for $11,000. Charlie, John R., and the defendant test drove the vehicle and had it in their possession for approximately four hours, returning it at 8:00 p.m. At that time, Jordan’s friend Diana had expected to see him at the Arrowhead Drive house; he did not arrive, and she telephoned him throughout the night but was ultimately unable to reach him. The next morning, Diana drove Charlie and the defendant to a car dealership in Hyannis, where they purchased a silver BMW for $10,995 in cash. Charlie, John R., and the defendant were later seen at a gas station with the BMW and a red gasoline can.

Jordan’s grandmother became concerned about his whereabouts because she had not seen him since the previous day. She and Jordan’s sister went to look for him, ultimately arriving at a place in the woods where Jordan and his sister often played as children. Jordan’s grandmother and sister noticed a fire burning in a pit, and found Jordan’s body at the bottom. A certified accelerant detection dog twice alerted to the presence of gasoline.

On December 18, the defendant drove with a friend to Wellfleet. During the drive, he admitted that he killed Jordan in the basement of the Arrowhead Drive house after attempting to rob him (Jordan and his cousin Charlie sold drugs and often carried around large amounts of cash with them). The defendant also admitted to facts related to the killing while at dinner with his girlfriend. After leaving his friend’s house later that night the defendant was stopped by police, who had a “be on the lookout” alert for the BMW registered to the defendant. The defendant was read his Miranda rights and voluntarily agreed to go to the police station to speak with the detectives about a recent homicide. During the defendant’s interview, he claimed that he remained at the Arrowhead Drive house for the remainder of the day after having been dropped off there and that he had spent all of the following day at his own home in South Yarmouth—these statements were inconsistent with other evidence as to his whereabouts.

Following a search of the Arrowhead Drive house, the Nissan, and the BMW, forensic experts concluded that traces of blood found in these locations were consistent with the victim’s DNA profile. The expert also found DNA that was consistent with the defendant’s DNA profile.

II. Procedural History

The superior court jury found Robert Vacher “guilty of murder in the first degree, on theories of deliberate premeditation, extreme atrocity or cruelty, and felony murder.” Vacher appealed, looking for the Court to recognize “target standing,” various constitutional issues including witness immunity, and deficient jury instructions.

III. Question Presented

The Massachusetts Supreme Judicial Court (“SJC”) considered three questions: (1) whether “target standing” was available to the defendant under art. 14 of the Massachusetts Declaration of Rights; (2) whether the witness immunity statute, chapter 233, sections 20C–20E of the Massachusetts General Laws, was constitutional; (3) whether the superior court erred in admitting testimony from a police officer who identified the defendant in surveillance footage; and (4) whether the judge’s failure to instruct the jury pursuant to Commonwealth v. DiGiambattista prejudiced the defendant.

IV. Reasoning and Analysis

(1) The SJC first reviewed “target standing,” which the defendant asked the Court to recognize for the first time. Target standing is a concept where the “real target” of a police investigation should have standing to assert a violation of the constitutional rights of coventurers in litigating the defendant’s own motion to suppress. The Court provided an example to explain the concept: “Unconstitutional [police conduct directed at] small fish intentionally undertaken in order to catch big ones may have to be discouraged by allowing the big fish, when caught, to rely on the violation of the rights of the small fish, as to whose prosecution the police are relatively indifferent.” During the investigation, police interviewed both Charlie and John R. in connection with the crime. At the time, the police had information to suggest that both Charlie and John R. could have played a significant role in the victim’s death; therefore they, too, were considered “big fish” and targets of the investigation. The Court held that the defendant could not establish that he was the prime target of the police investigation and therefore his target standing challenge was properly denied.

(2) The Court then reviewed the defendant’s argument that the prosecution’s reliance on immunized witnesses undermined his federal and state constitutional rights to protect him from conviction based on false evidence, challenging the constitutionality of the witness immunity statute, chapter 233, sections 20C–20E of the Massachusetts General Laws. Chapter 233, section 201 of the Massachusetts General Laws provides that a defendant cannot be convicted by immunized testimony alone. The Court found that no violation of chapter 233, section 201 of the Massachusetts General Laws occurred because nonimmunized witness testimony corroborated the immunized witnesses’ testimony. Furthermore, the Court found no constitutional violation of chapter 233, section 20E of the Massachusetts General Laws because there was no error or misconduct in the use of the immunized witnesses: the judge had clearly instructed the jury that they could consider the witnesses’ grant of immunity in determining his or her credibility and that the jury could not convict solely on the grounds of the immunized testimony.

(3) Finally, the Court addressed the issue of whether the superior court erroneously admitted prejudicial testimony from a police officer identifying the defendant as the person seen in the convenience store surveillance footage. A witness’s opinion about the identity of persons in surveillance footage or photography is only admissible if the witness is more likely than the jury to correctly identify the defendant. Because there was no evidence that the witness was more capable in making this determination than the jury, the officer’s testimony was improperly admitted. However, there is no evidence that the improper testimony prejudiced the defendant because the defendant admitted to being in the convenience store on that night and the testimony did not overwhelm the other convincing, properly admitted evidence.

(4) The Court then analyzed whether the superior court judge’s failure to give the jury instructions pursuant to Commonewealth v. DiGiambattista prejudiced the defendant. The DiGiambattista instructions state that:

when the prosecution introduces evidence of a defendant’s confession or statement that is the product of a custodial interrogation or an interrogation conducted at a place of detention . . . and there is not at least an audiotape recording of the complete interrogation, the defendant is entitled (on request) to a jury instruction advising that the State’s highest court has expressed a preference that such interrogations be recorded whenever practicable, and cautioning the jury that, because of the absence of any recording of the interrogation in the case before them, they should weigh evidence of the defendant’s alleged statement with great caution and care.

The Court held that the superior court erred in failing to give a DiGiambattista instruction because the recording of the defendant’s interrogation at the police station was incomplete; however, the failure to supply this jury instruction did not prejudice the defendant. The missing portions of the recording were introductory in nature. The interrogator’s introduction, notification that the interrogation would be recorded, and the defendant’s waiver of Miranda rights were included in the recording. The jury therefore had sufficient information to determine the voluntariness of the defendant’s statements in the recording.

V. Conclusion

For the foregoing reasons, the SJC affirmed the defendant’s convictions.

Contributing Editor: Catherine S. Flaherty

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