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SJC-11691

                  COMMONWEALTH    vs.   EDWARD COOLEY.



            Hampden.       March 10, 2017. - July 13, 2017.

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


Homicide. Robbery. Firearms. Joint Enterprise. Evidence,
     Joint venturer, Exculpatory. Practice, Criminal, New
     trial, Capital case.



     Indictments found and returned in the Superior Court
Department on June 29, 2010.

     The cases were tried before Mary-Lou Rup, J., and a motion
for a new trial, filed on October 24, 2011, was heard by her.


     Stephen Paul Maidman for the defendant.
     David L. Sheppard-Brick, Assistant District Attorney, for
the Commonwealth.


    BUDD, J.     In the early morning hours of March 20, 2010,

Nicholas Hiller was shot and killed in Springfield while sitting

in his motor vehicle.      The defendant, Edward Cooley, was

indicted and ultimately convicted by a jury of murder in the
                                                                     2


first degree on a theory of felony-murder,1 as well as unlawful

possession of a firearm and wilful interference with a criminal

investigation.    In this consolidated appeal, the defendant

claims that the judge erred in denying his motion for a required

finding of not guilty of murder in the first degree and unlawful

possession of a firearm.    The defendant further argues that the

judge improperly denied his motion for a new trial, which was

based on the Commonwealth's failure to disclose allegedly

exculpatory evidence that had been specifically requested.      We

affirm the defendant's convictions and the judge's order denying

his motion for a new trial.    After a review of the entire

record, we also decline to reduce or set aside the defendant's

murder conviction 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.    At approximately 12:20 A.M. on

March 20, 2010, in a Springfield neighborhood, a witness heard

two shots fired.    She looked out her window and saw two men

speaking in a "panicking way"; the men then ran in opposite

directions.    Other witnesses also heard the gunshots, soon

followed by the sound of a motor vehicle crashing.     The victim's

motor vehicle had crashed through a fence, struck another

vehicle, and come to a stop in the yard of one of the witnesses.

     1
         The predicate offense was armed robbery.
                                                                    3


The victim was slumped over in the driver's seat and bleeding

heavily.

    As the witnesses approached the vehicle, the defendant,

wearing a leather jacket, ran up yelling, "It's my god-brother,"

and "Don't call the cops[;] the guy[']s got weed on him."     He

climbed into the vehicle, pulled the victim slightly toward him

while patting him down, and took the victim's cellular

telephone.   He also took a bag from behind the victim's seat,

where police later found two bags containing marijuana.     After

getting out of the motor vehicle, the defendant told the

witnesses to telephone the police and left the scene.      First

responders found that the victim sustained injuries consistent

with a bullet traveling through his right arm and into his

chest.   He was pronounced dead a short time later at a hospital.

    Police were directed to the defendant, who had since

returned to the area (without his leather jacket).   The

defendant was interviewed at the scene and twice more at the

police station.   As investigators uncovered further evidence,

the defendant changed portions of his statement.   For example,

after first denying it, he eventually admitted that the leather

jacket, found hidden a short distance away from where the victim

and his vehicle had crashed, was his.   The jacket tested

positive for gunshot primer residue on the cuffs, indicating

that the jacket may have been within three feet of a gun when it
                                                                        4


was fired.     The jacket also was stained with blood that matched

the major deoxyribonucleic acid profile of the victim.     The

defendant admitted to taking the victim's cellular telephone

from the motor vehicle after the crash only after police

recovered it from a motor vehicle belonging to the defendant's

girl friend.

    Other portions of the defendant's statements to police were

proved false at trial.    For example, the defendant had stated

that he happened to meet the victim at a pharmacy store hours

before the shooting, but surveillance video recordings from

inside and outside the store showed the victim there alone.           The

defendant's claim that he had been on the telephone with the

victim at the time of the shooting was belied by telephone

records that showed that there were no telephone calls between

the defendant and the victim at any point prior to the shooting.

    The telephone records also showed that, although there were

no calls between the defendant and the victim, both were in

touch with a third party, who had a telephone number ending in

7471, in the hours before the killing.     There were numerous

calls between the victim's number and the 7471 number,

culminating with a call made minutes before the shooting.        In

addition, the records indicated that there were calls during the

night prior to the shooting between the defendant's number and

the 7471 number until 9:42 P.M.     Another call was made from the
                                                                   5


defendant's number to the 7471 number soon after the defendant

finished giving his second statement at the police station.

     2.   Sufficiency of the evidence.   At trial, the

Commonwealth's theory was that the defendant and an unidentified

person were involved in a joint venture to rob the victim, that

either one or the other shot the victim during the course of the

robbery, and that the defendant completed the robbery after the

shooting at the site of the crash.

     The defendant argues that the evidence was insufficient to

convict him as a joint venturer in an armed robbery that

resulted in the victim's death.2   "To succeed in a claim for

insufficient evidence, [the defendant] 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 beyond a reasonable doubt."

Commonwealth v. Mendez, 476 Mass. 512, 523 (2017), citing

Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).

     Applying that standard here, to find the defendant guilty

of felony-murder with armed robbery as the predicate offense, a

rational juror must have been able to find beyond a reasonable


     2
       The defendant also asserts insufficient evidence was
presented to prove unlawful possession of a firearm. Because
one of the elements of armed robbery is possession of a
dangerous weapon, the discussion of that charge is included in
our analysis of the sufficiency of proof of the armed robbery,
infra.
                                                                     6


doubt that the defendant participated in an armed robbery and

that the victim's death occurred in the commission or attempted

commission of that robbery.    See Commonwealth v. Williams, 475

Mass. 705, 710 (2016); Commonwealth v. Zanetti, 454 Mass. 449,

467-468 (2009).   The participants need only have had the intent

to commit the underlying felony, not necessarily the intent to

commit murder.    See Commonwealth v. Hanright, 466 Mass. 303, 307

(2013), and cases cited.

    In order for the jury to find the defendant guilty of armed

robbery, the Commonwealth was required to prove either that the

defendant was armed with a dangerous weapon or that he knew that

a coventurer was so armed, and that he or his coventurer

assaulted the victim and took money or property from that victim

with the intent (or shared intent) to steal it.    See Williams,

supra at 710; Commonwealth v. Britt, 465 Mass. 87, 100 (2013).

The defendant argues that the Commonwealth presented

insufficient evidence of (1) intent, (2) knowledge of an

accomplice's gun, and (3) actual taking or stealing of property.

We disagree.

    There were several indications of the defendant's intent to

commit armed robbery of the victim.    He was aware that the

victim sold marijuana, and had purchased it from the victim in

the past.   He admitted to patting the victim down looking for

marijuana minutes after the shooting, and took a brown paper
                                                                   7


bag, as well as the victim's cellular telephone, from the motor

vehicle.   Further, the telephone calls between the victim and

the unidentified caller, and between the defendant and the

unidentified caller, support an inference that the defendant and

a coventurer planned the victim's robbery.   The records

indicated that both the victim and the defendant were in contact

with the same telephone number, ending in 7471, on March 19,

2010, the day before the killing.

    There were multiple telephone calls between the defendant

and the 7471 number in the early morning hours of March 19, one

call on the afternoon of March 19, and one at 9:42 P.M. that

night.   These patterns of calls, along with evidence that the

defendant had accurate information about the victim's

whereabouts prior to the killing, allowed for the inference that

the defendant and the unidentified caller were together prior to

and during the shooting.   The defendant also made a telephone

call to the 7471 number at 11:40 A.M. on March 20, which was

shortly after the defendant left the police station.    See

Commonwealth v. Caswell, 85 Mass. App. Ct. 463, 472 (2014),

cert. denied, 135 S. Ct. 1440 (2015) (numerous telephone calls

between defendant and coventurer exchanged "shortly before and

after the victim was killed" permitted jury inference that

defendant participated in planning crime).
                                                                     8


       In addition, there was a series of telephone calls between

the victim and the 7471 number starting at 8:51 P.M. on March

19, up until 12:17 A.M. on March 20.    The victim was shot at

approximately 12:20 A.M.    The user of the 7471 number did not

call the victim's telephone after the victim was shot and

killed.

       There was also ample evidence that either the defendant

possessed a firearm or his coventurer possessed one and the

defendant knew about it.    The victim's brother testified that

the victim had possessed a duffle bag containing a large

quantity of marijuana and often had a large sum of money with

him.    The defendant admitted that he knew the victim sold drugs.

A reasonable juror could conclude that a plan to rob a drug

dealer would include a gun where the victim's resistance was

reasonably anticipated.    See Commonwealth v. Cannon, 449 Mass.

462, 470 (2007); Commonwealth v. Netto, 438 Mass. 686, 702-703

(2003).    Further, the gunshot residue on the cuffs of the

defendant's jacket indicated that the defendant either fired a

gun or was very close by when a gun was fired, permitting the

inference that the defendant was aware that his coventurer had a

gun.    See Commonwealth v. Johnson, 463 Mass. 95, 107 (2012).

       In addition, the evidence that the defendant took the

victim's cellular telephone and a paper bag after the shooting

allowed for the inference that the defendant completed the
                                                                    9


robbery.   Although the defendant offered alternative

explanations for his actions, in determining whether a

reasonable jury could find each element of the crime charged, we

do not weigh supporting evidence against conflicting evidence.

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

215 (2007) and 460 Mass. 12 (2011).

    Finally, the defendant's actions, including hiding his

blood-stained leather jacket, and his misstatements, including

his supposed interactions with the victim prior to the shooting,

demonstrated his consciousness of guilt.     See Commonwealth v.

Vick, 454 Mass. 418, 424 (2009) ("While a conviction may not be

based solely on evidence of consciousness of guilt, . . .

indications of a defendant's state of mind, coupled with other

evidence, can be sufficient to establish guilt" [citation

omitted]).

    Although circumstantial, the evidence, taken in the light

most favorable to the Commonwealth, was indeed sufficient to

prove the defendant's guilt.   See Commonwealth v. White, 452

Mass. 133, 135 (2008) (circumstantial evidence is competent to

establish guilt beyond reasonable doubt), and cases cited.

Accordingly, the judge properly denied the defendant's motion

for a required finding.

    3.     Motion for new trial.   The defendant also argues that

the motion judge, who was the trial judge, erred in denying his
                                                                   10


motion for a new trial based on the Commonwealth's failure to

produce exculpatory evidence.   Given the nature of the evidence

and the parties' arguments at trial, there was no error.

     The evidence in question was a police report from an

interview of an individual named Marcus Dixon about an unrelated

murder.   During that interview, the police learned that another

man, Bryan Ingram, had said that he (Ingram) shot the victim in

the homicide in which the defendant had been charged.3   The

Commonwealth concedes that the evidence was not provided to the

defendant despite a specific request for "any police reports or

witness 'statements,'" and other evidence regarding "any and all

cooperating witnesses . . . who [have] provided information and

given a statement regarding the defendant."   Given the specific

request, as well as the judge's finding that the evidence was

     3
       Dixon said that Ingram had told Dixon that Ingram had
"shot that white kid," referring to the victim.

     The only reference to Ingram during the trial was struck
from the record. Although Ingram's alleged admission to Dixon
was not disclosed before trial, the defendant was or should have
been aware that Ingram had been investigated in connection with
the victim's murder; during pretrial discovery, the Commonwealth
provided the defendant with a different statement relating to
both the defendant and Ingram. That statement alleged that the
defendant had admitted to another person that he was involved in
a robbery with Ingram, and Ingram had told that person that the
defendant "just better hold it down." In that statement, the
person also mentioned that Ingram lived on a street that was
later associated with the 7471 number, at an address which the
defendant later investigated. Both parties anticipated the
possibility that this statement would come in evidence; however,
that person was ultimately not called to testify, and the
statement was not introduced in evidence.
                                                                   11


exculpatory,4 we must determine "whether we can be confident

that, even if the prosecution had supplied the report to the

defendant[] in timely fashion, the report or available evidence

disclosed by it would not have influenced the jury."

Commonwealth v. Healy, 438 Mass. 672, 679–680 (2003), quoting

Commonwealth v. Daye, 411 Mass. 719, 729 (1992).   Nevertheless,

the defendant had the burden to "demonstrate that a substantial

basis exist[ed] for claiming prejudice from the nondisclosure"

in order to receive a new trial (citation omitted).    Healy,

supra at 680.

     The judge declined to grant the defendant's motion for a

new trial because the Commonwealth's main theory was that the

defendant had participated in the armed robbery and murder as a

joint venturer.5   After examining the evidence that the


     4
       The judge found that although Ingram's admission to being
the shooter would not preclude the defendant's participation in
the armed robbery, it would have forced the Commonwealth to
prove the defendant's role as a coventurer only, and not as the
principal.
     5
       The prosecutor's closing argument relied almost entirely
on the theory that the defendant was guilty as a joint venturer:

          "I said in my opening that the evidence may not show
     that the defendant shot the victim himself. But the
     evidence will show that if he didn't, he was with somebody
     who did. And you know this, in part, because of the
     gunshot residue on the cuffs of his jacket. . . . The
     evidence further shows that the defendant was communicating
     with someone else . . . . [T]he people on the street don't
     see a gun in [the defendant's] hand, so the defendant,
     indeed, may not have shot the victim himself. But if he
                                                                     12


Commonwealth introduced at trial, the judge concluded that the

exculpatory evidence did not affect the strength of the evidence

supporting the view that the defendant was a joint venturer,

even if not the shooter.    In other words, proof that the

defendant was not the shooter was immaterial given the strength

of the evidence that he was present at the time of the shooting

and participated in the armed robbery.

    "The decision to deny a motion for a new trial lies within

the sound discretion of the judge and will not be reversed

unless it is manifestly unjust or the trial was infected with

prejudicial constitutional error. . . .     Reversal is

particularly rare where the judge who acted on the motion was

also the trial judge."     Commonwealth v. Jenkins, 458 Mass. 791,

803 (2011), citing Commonwealth v. Lucien, 440 Mass. 658, 669-

670 (2004).   Given the circumstances of this case, the judge's

denial of the motion was not an abuse of discretion.      The

Commonwealth's theory of the case was joint venture and focused

on the user of the 7471 telephone number as the defendant's

coventurer.   See Zanetti, 454 Mass. at 465 ("jurors may all

agree that the defendant knowingly participated in the

commission of the crime but differ as to whether he did so as a

principal or a joint venturer").    As a result, here, as the



    didn't do it himself, it happened during the commission of
    a joint venture."
                                                                   13


judge implicitly recognized, the evidence of Ingram's claimed

admission of having shot the victim was more likely to fill in

the gaps of the joint venture (by identifying the second

participant) than to demonstrate the defendant's innocence.

Contrast Commonwealth v. Ellison, 376 Mass. 1, 21-22 (1978)

(nondisclosed evidence tended to show that defendant was not

involved in joint venture).   Thus, in the circumstances of this

case, the judge was warranted in concluding that a new trial was

not called for.

    4.   Review under G. L. c. 278, § 33E.   After a careful

review of the entire record, we discern no reason to reduce the

degree of guilt or grant a new trial pursuant to our powers

under G. L. c. 278, § 33E.

                                    Judgments affirmed.

                                    Order denying motion for
                                      a new trial affirmed.
