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17-P-829                                               Appeals Court

    COMMONWEALTH     vs.    CHAD CONNORS (and a companion case1).


                               No. 17-P-829.

        Worcester.         December 13, 2018. - March 11, 2019.

             Present:      Kinder, Neyman, & Desmond, JJ.


Homicide. Kidnapping. Felony-Murder Rule. Joint Enterprise.
     Evidence, Joint venturer, Hearsay, Third-party culprit,
     Reputation. Practice, Criminal, Required finding, Hearsay,
     Transcript of hearing.



     Indictments found and returned in the Superior Court
Department on November 21, 2014.

    The cases were tried before Brian A. Davis, J.


     Dana Alan Curhan for Chad Connors.
     Jennifer H. O'Brien for Allen Erazo.
     Donna-Marie Haran, Assistant District Attorney, for the
Commonwealth.




    1  Commonwealth vs. Allen Erazo. We spell Erazo's name as it
appears in the indictment. Commonwealth v. Harris, 468 Mass.
429, 429 n.1 (2014).
                                                                    2


     KINDER, J.   On August 12, 2014, inmate Michael Freeman beat

inmate William Sires to death in a cell at the Souza-Baranowski

Correctional Center (SBCC).   The defendants, Chad Connors and

Allen Erazo, who are also inmates at SBCC, were charged with

murder in the first degree as joint venturers based on evidence

that Erazo physically forced the victim into the cell where

Freeman was waiting while Connors closed the curtain on the cell

door and stood by during the beating.

     On April 8, 2016, Freeman pleaded guilty to murder in the

first degree.   On May 6, 2016, following a jury trial in the

Superior Court, the defendants were both convicted of murder in

the second degree based on a theory of felony-murder, with a

predicate felony of kidnapping, G. L. c. 265, § 26.   Erazo's

conviction of murder in the second degree was also based on a

theory of intent-based murder.2

     On appeal, the defendants challenge the sufficiency of the

evidence.   Erazo also claims error in several evidentiary

rulings and raises one argument pursuant to Commonwealth v.

Moffett, 383 Mass. 201 (1981).    Specifically, he argues that his

felony-murder conviction is not consonant with justice in light

of Commonwealth v. Brown, 477 Mass. 805, 807 (2017), which




     2 The jury's verdict slips designated the bases of the
convictions.
                                                                    3


narrowed the scope of felony-murder liability and prospectively

"eliminated felony-murder in the second degree."    Commonwealth

v. Fredette, 480 Mass. 75, 80 n.9 (2018).    Discerning no error,

we affirm.3

     Background.    We summarize the evidence in the light most

favorable to the Commonwealth.   See Commonwealth v. Latimore,

378 Mass. 671, 677-678 (1979).   In 2014, Freeman, the

defendants, and the victim resided in the N1 housing unit at

SBCC.    The unit is monitored by recorded video surveillance, and

a video recording that was introduced at trial showed the

following sequence of events on August 12, 2014.    The victim,

who was in his seventies and walked with a cane, fought with

Freeman as the victim walked around the common area of the unit

during recreational time.    After other inmates stopped the

physical altercation, Freeman, Connors, and another inmate,




     3 Counsel for Connors stated at oral argument that Connors
intended to join in Erazo's arguments and would be filing a
motion to that effect. No such motion was filed, and we decline
to consider whether the issues raised by Erazo apply to Connors.
We note that Connors did not object to many of the evidentiary
rulings that form the basis of Erazo's appeal, and the issues
raised by Erazo were not argued in Connors's brief and are thus
waived. Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921
(1975). See also Commonwealth v. Carey, 407 Mass. 528, 531 n.3
(1990) (claim raised at oral argument but not briefed is
waived). That notwithstanding, even if counsel for Connors had
timely joined in all of Erazo's arguments, we would still affirm
the convictions for all of the reasons set forth in this
opinion.
                                                                       4


Shaun McDonald, huddled together as the victim continued walking

around the common area.     When Freeman confronted the victim a

second time shortly thereafter, they exchanged words and the

victim walked away.     Freeman and McDonald then talked in front

of McDonald's cell (number twenty-three) while Connors sat on

the table closest to the officers' station.     Freeman briefly

entered cell twenty-three, exited, and spoke to McDonald and

Erazo.     Connors, Freeman, and McDonald then engaged in

conversation as the victim walked toward cell twenty-three.       As

the victim approached cell twenty-three, Freeman and McDonald

entered the cell and Connors stood by the door.     Erazo

approached the victim suddenly from behind, wrapped his arms

around the victim, and violently pulled him inside cell twenty-

three.     Connors stepped toward the cell, Erazo exited, and

Connors pulled a curtain across the door.4    Connors immediately

walked away from the cell and toward the officers' station,

McDonald exited the cell, and the door to cell twenty-three then

closed.5    Connors circled back to the common area and sat at a


     4 The cell doors have curtains for inmates who want privacy
during recreational time.

     5 Inmates are permitted to ask a correction officer (CO) to
close any cell door during recreational time by yelling out
"close the door." The CO can open or close any cell door by
computer from the CO station. CO David Bolduc testified that,
on August 12, 2014, he closed the door to cell twenty-three
after he heard an inmate yell out for it to be closed. Bolduc
did not recognize the inmate's voice. Bolduc reopened the door
                                                                       5


table across from cell twenty-three with a direct view of the

cell and the officers' station.     Connors then left the table and

stood next to the cell directly across from cell twenty-three.

One and one-half minutes later, the door to cell twenty-three

reopened.   Neither the victim nor Freeman reemerged.

    Approximately thirty minutes after Erazo forced the victim

into cell twenty-three, correction officer (CO) Nicholas

Poladian was making his rounds when he noticed blood on the wall

in that cell.    Poladian looked inside and saw an inmate on the

floor covered in blood.     The inmate, later identified as the

victim, was unrecognizable as a result of the beating.          Freeman,

who was standing in the rear of the cell, said, "I did this.

What do you want me to do now?"     When asked where the weapon

was, Freeman responded, "I did it.     Everything is in there.       I'm

the only one."    Freeman also said, "I beat him to death.       I

killed him."     The victim's cane lay across his chest.

    Discussion.      1.   Sufficiency of the evidence.   The

defendants raise several challenges to the sufficiency of the

Commonwealth's evidence.     Erazo argues that there was

insufficient evidence that a kidnapping occurred.        Both

defendants claim that there was insufficient evidence that they




about one and one-half minutes later, when an inmate yelled for
it to be opened.
                                                                    6


knowingly participated in a joint venture to kidnap the victim.

See Commonwealth v. Zanetti, 454 Mass. 449, 467-468 (2009).

Connors argues that there was insufficient evidence that a

kidnapping occurred independent of the murder, and Erazo

challenges the sufficiency of the evidence of his intent to

commit murder in the second degree.   Our task in analyzing these

claims is to determine "whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime

beyond a reasonable doubt (emphasis in original)."   Latimore,

378 Mass. at 677, quoting Jackson v. Virginia, 443 U.S. 307,

318-319 (1979).

    a. Felony-murder based on kidnapping.    "To prove a person

guilty of kidnapping, the Commonwealth must establish beyond a

reasonable doubt that the person 'without lawful authority,

forcibly or secretly confine[d] or imprison[ed] another person

within this commonwealth'" against that person's will.

Commonwealth v. Oberle, 476 Mass. 539, 548 (2017), quoting G. L.

c. 265, § 26.   Here, video surveillance evidence clearly showed

Erazo forcibly pulling the victim into cell twenty-three as the

victim resisted.   Erazo concedes that the victim did not

voluntarily enter the cell.   "Confinement is broadly interpreted

to mean any restraint of a person's movement," Commonwealth v.

Boyd, 73 Mass. App. Ct. 190, 193 (2008) (quotation omitted), and
                                                                       7


the evidence showed that Erazo pulled the victim into cell

twenty-three against his will while Connors stood by the door.

Erazo then left the cell, Connors pulled a curtain across the

door, and the door closed for one and one-half minutes.    The

victim never reemerged.   From this evidence a rational juror

could conclude that the defendants confined the victim in cell

twenty-three.   See Oberle, supra (Commonwealth required to prove

act of confinement, not a specific intent to confine).

    Further, the jury could reasonably infer from the video

surveillance evidence that the defendants "knowingly

participated in the commission of the [kidnapping] with the

intent required for that offense."   Commonwealth v. Phap Buth,

480 Mass. 113, 115 (2018).   See Zanetti, 454 Mass. at 468.      The

jury saw that Freeman and Erazo conferred before Erazo took a

position at the end of the hall and waited for the victim.

Freeman and Connors then spoke in front of cell twenty-three

before Freeman entered the cell.   Connors stood by the door to

cell twenty-three and watched as Erazo pulled the victim inside,

then waited for Erazo to leave before he pulled the curtain

across the cell door.   Connors walked toward the officers'

station at the same time that someone asked for the door to cell

twenty-three to be closed and stood watch until the door

reopened.   Erazo passed by cell twenty-three numerous times

while only Freeman and the victim were inside.   The jury could
                                                                     8


reasonably infer from this evidence that the defendants were

aware of Freeman's plan to beat the victim in cell twenty-three

and that they actively participated in the forcible confinement

that preceded it.

    b. Merger.      Connors's argument that there was insufficient

evidence of a kidnapping independent of the murder is equally

unavailing.   "According to the merger doctrine, a defendant can

only be convicted of felony-murder if he or she committed . . .

a felony that is independent of the conduct necessary to cause

the victim's death."     Phap Buth, 480 Mass. at 118.

"[D]etermining whether a predicate felony merges with the

homicide depends on the resolution of two distinct inquiries":

"[f]irst, if the underlying predicate felony has an intent or

purpose separate and distinct from the act causing physical

injury or death, the merger doctrine is inapplicable, and . . .

no further analysis is required."     Commonwealth v. Fredette, 480

Mass. 75, 81 (2018).     "If the felony does not have an

independent intent or purpose, the second inquiry is whether the

conduct constituting the felony is separate and distinct from

the conduct that caused the homicide itself."     Id.   Here,

Connors's argument does not survive the first inquiry "[b]ecause

the crime of . . .. . . kidnapping has an independent felonious

purpose from the intent to cause physical injury or death."     Id.

at 86 n.10.   Accordingly, we need not decide whether the conduct
                                                                     9


constituting the kidnapping was separate and distinct from the

conduct that caused the homicide.

    c. Intent-based murder in the second degree.      "Murder in

the second degree is an unlawful killing with malice

aforethought."   Commonwealth v. Casale, 381 Mass. 167, 171-172

(1980).   Malice includes committing an "intentional act which,

in the circumstances known to the defendant, a reasonable person

would have understood created a plain and strong likelihood of

death."   Commonwealth v. Earle, 458 Mass. 341, 346 (2010).

Erazo concedes that he intentionally delivered the victim to

Freeman so that Freeman and the victim could fight.    There is no

question that the victim, who was in his seventies and disabled,

died during the course of that "fight."    Viewing this evidence

in the light most favorable to the Commonwealth, a rational

juror could conclude that Erazo understood that his actions

created a plain and strong likelihood of death.    Accordingly, we

reject Erazo's claim that there was insufficient evidence of his

intent to commit murder in the second degree.

    2.    Evidentiary rulings.   Erazo raises several claims of

error in the judge's evidentiary rulings.    Specifically, Erazo

contends that the judge erred when he (1) excluded the

transcript of Freeman's guilty plea colloquy, (2) excluded

evidence that Erazo was scheduled to be released soon after the

murder, (3) allowed the Commonwealth to introduce evidence that
                                                                  10


both defendants were from East Boston, and (4) excluded evidence

of the victim's reputation in the community and propensity for

violence.   We address each claim in turn.6

    a. Freeman's guilty plea.    In March, 2016, a Superior Court

judge, other than the trial judge, rejected Freeman's first

attempt to plead guilty to murder in the first degree because

Freeman disagreed with the prosecutor's recitation of the facts.

Specifically, Freeman disputed the statement that he planned the

killing in advance and recruited others to help him.   On April

8, 2016, Freeman pleaded guilty before another Superior Court

judge who also was not the trial judge.   Before trial, Erazo

filed a motion in limine seeking to introduce portions of the

March, 2016, transcript and the entire transcript of Freeman's

guilty plea as evidence of a third-party culprit.   The judge

ruled that the fact of Freeman's guilty plea was admissible and

that Freeman could testify at trial, but he excluded the

transcripts of the guilty plea colloquy, reasoning that the

statements made during the colloquy were inadmissible hearsay




    6  Erazo also claims that the judge improperly excluded a
statement Freeman purportedly made in the health services unit
following the murder, that the victim "didn't deserve it that
bad . . . . He thinks just because he is an old man and
handicapped, he can run his mouth to anyone." A voir dire
examination of three COs regarding Freeman's statements in the
health services unit produced no evidence that Freeman made such
a statement. Accordingly, we need not address that claim.
                                                                   11


and did not qualify as third-party culprit evidence.    Because

Erazo objected and the issue is of constitutional dimension, we

independently review the judge's decision under the prejudicial

error standard.   See Commonwealth v. Foxworth, 473 Mass. 149,

160 (2015); Commonwealth v. Scott, 470 Mass. 320, 327 (2014).

     Erazo claims that Freeman's guilty plea colloquy qualified

as an exception to the rule against hearsay because it was a

statement against his penal interest.    Under this exception, a

statement is admissible if (1) the declarant's testimony was

unavailable, (2) the statement subjected the declarant to

criminal liability such that no reasonable person would have

made the statement unless he believed it to be true, and (3) the

statement is sufficiently trustworthy.    See Commonwealth v.

Weichell, 446 Mass. 785, 802-803 (2006).    Here, the judge

assumed Freeman's unavailability based on trial counsels'

representations that Freeman, if called to testify, would

exercise his privilege under the Fifth Amendment to the United

States Constitution not to incriminate himself.    The judge

concluded, however, that the portion of the colloquy that Erazo

sought to admit at trial -- Freeman's disavowal of any joint

venture with the defendants -- was not sufficiently trustworthy.7


     7 The judge noted that Freeman pleaded guilty two years
after the murder "in a carefully choreographed event," and that
Freeman "had a long time to think about it."
                                                                   12


We discern no error in that conclusion, where the plea colloquy

came nearly two years after the murder and was contradicted by

the surveillance video.   See id. at 803 (judge may consider

timing of statement and reliability of declarant when assessing

trustworthiness).

    Next, Erazo claims that Freeman's statements during the

guilty plea colloquy should have been admitted as third-party

culprit evidence.   "Evidence that a third party committed the

crimes charged against the defendant . . . is admissible

provided that the evidence has substantial probative value."

Mass. G. Evid. § 1105 (2018).   See Commonwealth v. Silva-

Santiago, 453 Mass. 782, 800-801 (2009).    The Supreme Judicial

Court "has given wide latitude to the admission of relevant

evidence that a person other than the defendant may have

committed the crime charged."   Id.   However, Erazo provides no

authority, and we have found none, for the proposition that

third-party culprit evidence is admissible when the claimed

third-party culprit is the principal and the defendant is

charged under a joint venture theory.    The case law is to the

contrary.   See Commonwealth v. Pimental, 454 Mass. 475, 479

(2009) (third-party evidence consisting of prior bad acts had no

application in joint venture case).     Thus, the judge properly

excluded the guilty plea colloquy as third-party culprit

evidence.
                                                                 13


    In any event, exclusion of Freeman's guilty plea colloquy

did not prejudice Erazo where the jury heard numerous other

statements by Freeman that he was the "only one" and that it was

"all me."   The judge's decision, therefore, did not deprive

Erazo of the right to present a defense.

    b. Erazo's statements and release date.    Over Erazo's

objection, the judge admitted statements by Connors and Erazo,

made to a State Police trooper on the day of the murder, that

they were both from East Boston.   The judge denied Erazo's

request that he be allowed to introduce another portion of the

statement, that he thought he was "getting out" in September.

Because Erazo objected, we review for prejudicial error.

Foxworth, 473 Mass. at 160.

    Although the probative value of the East Boston connection

between the defendants was slight, so too was the potential

prejudicial impact of that testimony.   The jury were already

aware that Erazo came from East Boston because his counsel

introduced him that way during empanelment.   The fact that

Connors had lived in the same community established no more

connection between the defendants than was evident from the

video surveillance evidence.

    We discern no error in the exclusion of a trooper's

statement in a recorded conversation with Erazo that Erazo was

"getting out soon."   The trooper's statement and Erazo's
                                                                   14


affirmative response to it were out-of-court statements offered

to prove the truth of the matter asserted in that statement and

therefore qualified as hearsay.8   See Mass. G. Evid. § 801 (c).

Erazo cites no exception for the admission of those statements.

     c. Victim's reputation.   Before trial, the judge allowed

the Commonwealth's motion in limine to exclude evidence of the

victim's character.   Erazo argues that the judge abused his

discretion in allowing the motion, because the victim's

reputation in the community and propensity for violence were

relevant to the issue of Erazo's intent.    We discern no abuse of

discretion.

     First, the defendants made no offer of proof regarding the

victim's reputation in the prison or his propensity for

violence.   Instead, they relied solely on the transcript of the

defendants' interviews with a State trooper, wherein the trooper

referred to the victim's disciplinary history, the reason for

the victim's incarceration (1973 murder of his mother), and the

fact that the victim allegedly had a "big mouth" and did not get

along with others.    "It is only where the sources [of general

reputation evidence] are sufficiently numerous and general that

they are viewed as trustworthy" and therefore probative.




     8 The trooper stated, "So you're getting out soon, is that
correct?" Erazo responded, "Yes, sir."
                                                                   15


Commonwealth v. LaPierre, 10 Mass. App. Ct. 871, 871 (1980).

"We do not allow the admission of the private opinions of

individual witnesses as character evidence." Commonwealth v.

Adjutant, 443 Mass. 649, 664 (2005).

     The judge also properly excluded evidence of the victim's

alleged propensity for violence because (1) neither defendant

claimed to have acted in self-defense, Commonwealth v.

Phachansiri, 38 Mass. App. Ct. 100, 106 (1995), cert. denied,

519 U.S. 900 (1996), and (2) the video surveillance evidence

made it clear that the victim was not the first aggressor.       See

Adjutant, supra (evidence of victim's specific acts of violence

admissible "where the identity of the first aggressor is in

dispute").   Where there was no claim that the defendants were

reacting to anything that the victim did, we see no error in the

judge's decision that improperly prejudiced the defendant.

Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994) (defining

prejudicial error).9

     3.   Application of Commonwealth v. Brown.10   Relying on

Commonwealth v. Brown, 477 Mass. 805 (2017), Erazo claims that


     9 We have carefully reviewed Erazo's preserved claim that
the judge improperly admitted evidence regarding a medical
emergency in another unit, and his unpreserved claim that the
judge improperly allowed the Commonwealth to argue in closing
that Connors orchestrated the emergency in furtherance of the
joint venture. We see no merit in either claim, no prejudice to
Erazo, and no substantial risk of a miscarriage of justice.
                                                                    16


his conviction of murder in the second degree on a theory of

felony-murder is not consonant with justice.    In Brown, the

Supreme Judicial Court prospectively narrowed the scope of

felony-murder liability to require proof that the defendant

acted with one of the three prongs of malice.    Id. at 807.

Constructive malice, meaning the intent to commit the underlying

felony, will no longer support a felony-murder conviction.      Id.

at 831 (Gants, J. concurring).    Instead, in order to convict a

defendant of felony-murder, the Commonwealth must now establish

"that he or she intended to kill or to cause grievous bodily

harm, or intended to do an act which, in the circumstances known

to the defendant, a reasonable person would have known created a

plain and strong likelihood that death would result."      Id. at

825 (Gants, J., concurring).

       The majority holding in Brown applies only to cases tried

after the Court's decision.    Id. at 808.   It has "no effect on

felony-murder cases already tried, including this case."     Id. at

834 (Gants, J., concurring).    See also Phap Buth, 480 Mass. at

120.    Consequently, Brown has no application here.

                                     Judgments affirmed.




       Erazo's counsel advances this argument pursuant to
       10

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