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SJC-12631

                 COMMONWEALTH   vs.   DANIEL TAVARES.



            Bristol.     January 6, 2020. - May 6, 2020.

   Present:    Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
                             Kafker, JJ.


Homicide. Practice, Criminal, Capital case, Request for jury
     instructions, Motion for a required finding.



     Indictments found and returned in the Superior Court
Department on March 28, 2013.

    The case was tried before Gary A. Nickerson, J.


     Theodore F. Riordan (Deborah Bates Riordan also present)
for the defendant.
     Mary E. Lee, Assistant District Attorney, for the
Commonwealth.


    LOWY, J.    In December 2015, a jury convicted the defendant,

Daniel Tavares, of murder in the first degree on theories of

deliberate premeditation and extreme atrocity or cruelty, for

the 1988 stabbing death of Gayle Botelho.     The judge sentenced
                                                                    2


the defendant to life in prison.1    On appeal, the defendant seeks

reversal of his conviction, arguing that the trial judge erred

by denying (1) his requests for a jury instruction pursuant to

Commonwealth v. Croft, 345 Mass. 143, 145 (1962); and (2) his

motions for a required finding of not guilty because the evidence

equally supported two inconsistent propositions, as prohibited

by Croft.   The defendant also requests that we exercise our

power pursuant to G. L. c. 278, § 33E, to reduce his conviction

to manslaughter.    Finding neither reversible error nor reason to

exercise our authority under § 33E, we affirm.

     Background.    We recite the evidence in the light most

favorable to the Commonwealth, reserving certain details for

later discussion.   See Commonwealth v. Rodriguez, 456 Mass. 578,

579 (2010).   The victim went missing on or about October 27,

1988.    At the time of her disappearance, the victim lived on

Prospect Street in Fall River with her boyfriend, Carlos

DaPonte, and his brother, Gil DaPonte.2    The defendant lived

across the street with his mother, and as relevant here, his

mother's friend, Richard Pires.     Neither the defendant nor




     1 The judge ordered that the defendant serve his sentence
from and after the sentence imposed by the State of Washington
in or around 2007, as discussed infra.

     2 Because they share a last name, we refer to Carlos and Gil
individually by their first names and collectively as the
DaPontes.
                                                                      3


anybody else was arrested in connection with the victim's

disappearance, until the defendant was charged in 2012.

     1.     The defendant's first version of events.   In 1991, the

defendant killed his mother and pleaded guilty to manslaughter.

He was sentenced to from seventeen to twenty years in State

prison.     In September 2000, while incarcerated, the defendant

wrote to a Bristol County assistant district attorney, claiming

to know the location of a murder victim's body, which he would

disclose, along with other relevant information, in exchange for

a reduced sentence.3    During a series of interviews that took

place over the subsequent months, the defendant told Detective

John McDonald the following details about the night the victim

was murdered:    the victim, Carlos, Gil, and their friend,

Raymond Paiva, were all at the defendant's house with the

defendant.     The defendant gave Carlos some cocaine to sell and

Carlos left.     The defendant then stepped outside to speak to his

girlfriend, Michelle Cardoza, for about ten to fifteen minutes.

When the defendant returned to his bedroom, he saw Gil holding a

knife and the victim on the floor with stab wounds to her back.

The defendant further stated that he was not present during the

stabbing.


     3 The defendant was not paroled, nor was his sentence
reduced in exchange for any information given to police. The
defendant also told police that he had contacted them because he
had found God and wanted to clear his conscience.
                                                                     4


     When the defendant asked what had happened, Gil confessed

to stabbing the victim, and the defendant announced he was going

to call for help.    Gil then pulled out a handgun, put it to the

defendant's head, and fired a round, which grazed the

defendant's forehead.     The defendant then said he had to leave

to pick up Cardoza, and he instructed Gil and Paiva to remove

the victim's body.    When the defendant returned approximately

twenty minutes later, he saw Gil and Paiva carrying the victim's

body, wrapped in a blanket, down the stairs and into the back

yard.4    Later, Gil and Paiva pointed to an area of the back yard

and told the defendant that that was where they had buried the

victim's body.    The defendant had been clearing that area for a

tomato garden, and he suspected that that was where Gil and

Paiva buried the body.5

     2.    The initial investigation.   After two interviews with

the defendant, in October 2000, the police went to the

defendant's former house on June Street.     In the defendant's

bedroom, they found a bloodstained section of floor.     In the

back yard, the police recovered a human skeleton and positively




     4 The defendant also told police that because Cardoza saw
Gil and Paiva carrying the victim, the defendant explained to
her that the victim had been hurt.

     5 After this meeting with the defendant, Detective McDonald
met with Cardoza, who confirmed the defendant's version of
events.
                                                                      5


identified the remains as those of the victim.     The autopsy

concluded that the cause of death was homicidal violence

including stabbing to the victim's back.

    Shortly thereafter, Lori Moniz, the defendant's former

girlfriend, saw a news report that a body had been discovered in

the defendant's back yard.     She contacted the police.   At a

subsequent meeting, she reported that, on an evening in late

October 1988, the defendant had telephoned and told her to come

to his house because he wanted to show her something.      When

Moniz arrived, the defendant answered the door, appearing

nervous and excited.    Moniz followed the defendant upstairs to

his bedroom and, as she approached, she saw the defendant on his

hands and knees scrubbing what appeared to be a large pool of

blood from the rug.     Upon seeing this, Moniz rushed down the

stairs to leave.   The defendant ran after her, explaining that

the blood was fake and a joke for Halloween.

    3.   The defendant's second version of events.     In 2002, the

defendant changed his story:    The defendant stated that he

witnessed Gil stab and murder the victim and that Cardoza was

not there that night.    In 2002, Cardoza also told Detective

McDonald that, at the defendant's request, she had lied about

being with the defendant on the night of the murder.       The

Commonwealth did not charge the defendant with the victim's

murder at this point.
                                                                    6


    4.    Further investigation.   In 2007, the defendant

completed his sentence for his mother's homicide, and within

days of his release from prison, he moved to the State of

Washington.   Shortly thereafter, the defendant killed two

people.   While incarcerated in Washington, the defendant learned

of a book that discussed the victim's murder, including the

defendant's cooperation with the police.     In 2012, another

individual incarcerated in the same Washington prison as the

defendant told the Fall River police department that he had

discovered an open letter, written on the cover of a book in the

prison library, in which the author, later confirmed to be the

defendant, refuted the notion that the defendant had cooperated

with police and, instead, asserted that he was the only suspect

in the victim's murder case, not a "rat."

    5.    The defendant's 2012 confession.    In November 2012,

Detective McDonald traveled to Washington to meet with the

defendant, at which point, the defendant changed his story

again.    The defendant stated that he alone murdered the victim

(2012 confession).    In this version, the defendant was angry

with the victim, the DaPontes, and Paiva for stealing cocaine

from him, and he planned to kill all of them in retaliation for

the theft.    On the day of the murder, he walked across the

street to the victim's house, and the victim answered the door.

The defendant asked if Carlos was home, but he was not.     The
                                                                    7


defendant told the victim that he knew all four of them had

stolen from him and that he wanted them to start selling cocaine

for him to repay their debt.    The defendant then invited the

victim across the street to retrieve some cocaine from his

house.   Upon entering his bedroom, the defendant laid out a line

of cocaine for the victim.     While the victim bent over to ingest

the line, the defendant took a handgun and tried to shoot her,

but the slide on the gun jammed.    The defendant then reached for

a knife that was on his bureau and stabbed the victim seven or

eight times.   The victim fell, and her blood soaked the floor.

The defendant then moved the victim's body to the back yard,

removed the victim's clothes, and buried the victim's body, face

down, in the back yard.   The defendant told Detective McDonald

that he would not have confessed if not for the book that had

been written, because he refused to be known as a "rat."6

     In February 2013, the defendant confessed three more times

in writing to (1) his former roommate, Richard Pires;




     6 The defendant also said that he accused Gil and Paiva of
the murder because they benefited from the stolen cocaine, so by
pinning it on them, he could kill two birds with one stone.
                                                                      8


(2) Detective McDonald;7 and (3) his former false alibi witness,8

Cardoza.

        A grand jury indicted the defendant for the victim's murder

in 2013, and the jury trial began on November 16, 2015.          At

trial, the defendant argued that he gave a false confession to

avoid being labeled a "rat" in prison.          He called an expert

witness who testified to the dangers of being considered a "rat"

within the prison system.       The jury convicted the defendant.

        Discussion.    1.   Jury instruction.   On appeal, the

defendant argues the judge erred in denying the defendant's

requests for a jury instruction pursuant to Croft, 345 Mass. at

145.9       Because the defendant preserved this issue at trial, we



       The defendant had kept in contact with Pires while
        7

incarcerated in Massachusetts and in Washington. Pires
testified that the defendant wrote to him on a somewhat regular
basis.

     The defendant told Pires that he had to "take them out"
because "Carlos and his girl stole something from [him] that was
not [his]" and that he "did [the crime] alone." The defendant
also said that he confessed to Lori Moniz and a woman who lived
across the street. In the letter to Detective McDonald, the
defendant wrote, "I acted alone and that's that." The defendant
reiterated to both of them that he came clean because the book
that had been written about the murder made him look like a
"rat."

       Also in February 2013, the defendant wrote Cardoza,
        8

admitting that he had asked her to lie for him and told her not
to lie for him anymore.

       The defendant's requested jury instruction was modified
        9

from the language in Croft. The requested instruction stated,
"Where the evidence tends equally to sustain either of two
                                                                     9


review for prejudicial error.   See Commonwealth v. Cruz, 445

Mass. 589, 591 (2005).

     We have long upheld the principle articulated in Croft that

"[w]hen the evidence tends equally to sustain either of two

inconsistent propositions, neither of them can be said to have

been established by legitimate proof."    Croft, 345 Mass. at 145,

quoting Commonwealth v. O'Brien, 305 Mass. 393, 400 (1940).     See

Commonwealth v. Kelly, 470 Mass. 682, 693-694 (2015).    Our

decision in Croft does not provide for a jury instruction, and

we have never interpreted it as such.10   Indeed, we previously

held that "a reference to the consequences of an even balance in

the evidence preferably should not be included in a charge on

reasonable doubt," Commonwealth v. Hunt, 462 Mass. 807, 825-826

(2012), quoting Commonwealth v. Beverly, 389 Mass. 866, 872-873

(1983), because such an instruction may lead the jury to

improperly infer that if the balance is weighted even slightly



inconsistent propositions, neither of them can be said to have
established guilt beyond a reasonable doubt. In such a case,
the evidence is insufficient to sustain the burden of proof
imposed upon the Commonwealth." See Croft, 345 Mass. at 145.

     10Even the cases to which the defendant cites in his brief
do not mention Croft in the context of a jury instruction.
Rather, they discuss the circumstances in which the trial judge
should have granted the defendant's motion for a required
finding of not guilty. See Commonwealth v. Rivera, 460 Mass.
139, 144 (2011) (judge erred in denying defendant's motion for
required finding of not guilty); Croft, 345 Mass. at 145 (same).
See Rodriguez, 456 Mass. at 582-583 (insufficient evidence to
support convictions).
                                                                   10


in favor of the defendant's guilt, the jury would be required to

find the defendant guilty, see Commonwealth v. Saladin, 73 Mass.

App. Ct. 416, 419 (2008).

    Instead, the principle articulated in Croft provides a

standard for judges to apply when considering a motion for a

required finding of not guilty and for appellate courts to apply

when reviewing the sufficiency of the evidence.     There was no

error.

    3.      Required finding of not guilty under Croft.   The

defendant also argues that the judge erred in denying his

motions for a required finding of not guilty both at the close

of the Commonwealth's case and at the close of all of the

evidence.    We review 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."     Commonwealth v. Cole,

473 Mass. 317, 334 (2015), overruled on another ground,

Commonwealth v. Wardsworth, 482 Mass. 454(2019), quoting

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).

    Citing Croft, the defendant argues that because the

Commonwealth based its entire case on the defendant's 2012

confession, the whole of the evidence supports two inconsistent

propositions:    (1) the 2012 confession was truthful and he

murdered the victim or (2) the 2012 confession was untruthful
                                                                       11


and was an effort to avoid being labeled a "rat" while serving

sentences in prison.      The defendant further argues that because

the evidence equally supports both propositions, the judge erred

in denying the defendant's motions for a required finding of not

guilty.   See Croft, 345 Mass. at 145.      The defendant is correct

that Croft requires a judge to grant a defendant's motion for a

required finding of not guilty when "the evidence tends equally

to sustain either of two inconsistent propositions" (citation

omitted).   Id.    That is not this case.

    This principle applies only in circumstances in which, even

viewing the evidence in the light most favorable to the

Commonwealth, "choosing among the possible inferences from the

evidence presented," would require a jury "to employ

conjecture."      Id. at 145 (evidence equally supported inference

that defendant possessed heroin with intent to sell it and

inference that defendant possessed heroin until he was certain

he had defeated his habit).      See Rodriguez, 456 Mass. at 582-583

(evidence equally supported inconsistent inferences that buyer

either obtained cocaine from third person or from defendant);

Commonwealth v. Eramo, 377 Mass. 912, 913 (1979) (evidence

equally supported inconsistent inferences that defendant either

issued prescription due to his independent medical judgment or

pursuant to request without legitimate medical purpose).

However, "it is for the jury to determine where the truth lies,
                                                                   12


for the weight and credibility of the evidence is wholly within

their province."   Cole, 473 Mass. at 334, quoting Commonwealth

v. Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass. 215 (2007)

and 460 Mass. 12 (2011).    See Commonwealth v. Merry, 453 Mass.

653, 662 (2009) (jury not required to believe testimony of

defendant's expert); Commonwealth v. Clifford, 374 Mass. 293,

297 (1978) (jury not required to disbelieve witnesses' testimony

placing defendant at scene of crime).

    The likelihood of the defendant's 2012 confession being

truthful or being untruthful are not in equipoise.    The weight

of the Commonwealth's evidence in this case, moreover, was

overwhelming and, contrary to the defendant's arguments,

included much more than just the defendant's 2012 confession to

Detective McDonald.   See Commonwealth v. Weaver, 474 Mass. 787,

791 (2016), aff'd 137 S. Ct. 1899 (2017), citing Commonwealth v.

Forde, 392 Mass. 453, 458 (1984).    The victim's body was buried

in the defendant's back yard.   The police found dried blood in

the defendant's bedroom.    It was reasonable for the jury to

conclude that, just hours after the murder, the defendant's

former girlfriend saw the defendant cleaning up a pool of blood

in the very same bedroom.    One of the defendant's then roommates

observed blood on the defendant's shirt in the washing machine,

a pool of blood on the basement floor, and a pitchfork and

shovel also in the basement near the door leading to the back
                                                                      13


yard.       The roommate had never seen the pitchfork and shovel in

that location before.       In addition to the 2012 confession to

police, the defendant separately confessed to Pires and to

Cardoza,11 and the Commonwealth put forth ample evidence

corroborating the defendant's confessions.12      The jury were free,

but not required, to believe that the defendant truthfully

confessed to murdering the victim.13      See Merry, 453 Mass. at

662.    Moreover, even without the defendant's explicit confession

to the murder, the defendant does not contest the statements he

made to police in 2000 and 2002.       He also admitted, without

recantation, that he knew the victim; that he was angry with her

for stealing cocaine from him; that the victim was murdered in

his bedroom; and that he knew where the victim's body was



       The defendant also confessed to Detective McDonald a
       11

second time in writing.

       The defendant confessed to Pires that the defendant cut
       12

out a section of his rug, and Pires testified that he had
observed the same. The defendant confessed that he stabbed the
victim seven or eight times, removed the victim's clothes, and
buried the victim's body face down, three facts that were never
publicly disclosed.

       The defendant's recitation of facts that contradict his
       13

confessions are of no moment, as we view the evidence in the
light most favorable to the Commonwealth when reviewing the
sufficiency of the evidence. See Cole, 473 Mass. at 334 ("Here,
the defendant has marshaled the evidence, or the purported lack
thereof, in the light most favorable to himself. This is not
the proper lens through which to view the evidence"); Merry, 453
Mass. at 662 ("That contradictory evidence exists is not a
sufficient basis for granting a motion for a required finding of
not guilty").
                                                                   14


buried.   We conclude that, viewing the evidence in the light

most favorable to the Commonwealth, a rational jury could have

found that the defendant was guilty of murder in the first

degree on both the theories of premeditation and extreme

atrocity or cruelty.

    4.    Review under G. L. c. 278, § 33E.    We have reviewed the

entire record pursuant to our responsibilities under G. L.

c. 278, § 33E.   We conclude that there is no basis for reducing

the defendant's sentence or ordering a new trial.    The

defendant's conviction is affirmed.

                                      So ordered.
