Commonwealth v. Foxworth

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Questions Presented

1. Whether statements the defendant made to a jailhouse informant were obtained in violation of the Sixth Amendment, art. 12 of the Massachusetts Declaration of Rights, or the rule against deliberate elicitation because the informant was an implied agent of the Commonwealth.
2. Whether testimony concerning statements made by the defendant's alleged coconspirator to the coconspirator's wife violated the spousal disqualification statute.
3. Whether evidence of the defendant's prior incarceration was inadmissible because its prejudicial effect outweighed its probative value.
4. Whether the prosecutor's closing argument improperly commented on the defendant's failure to testify.
5. Whether the jury instruction concerning testimony from an immunized witness was inadequate because it did not expressly require heightened scrutiny or state that the Commonwealth was not vouching for the witness.
6. Whether the court should exercise its extraordinary powers under Mass. Gen. Laws ch. 278, § 33E, to reduce the degree of guilt or order a new trial.

Holdings

1. A jailhouse informant is not a government agent for Sixth Amendment or art. 12 purposes absent evidence of an express or implied promise, inducement, or agreement by the government in exchange for deliberately eliciting incriminating statements. The informant was not shown to be a Commonwealth agent, so the motion to suppress was properly denied.
2. The spousal disqualification rule did not bar testimony concerning the alleged coconspirator's statements to his wife because the children were present during the conversation and, independently, threatening statements of the type at issue were not private conversations.
3. Evidence of the defendant's prior incarceration was admissible because it was offered for relevant purposes other than criminal propensity, its probative value outweighed the risk of unfair prejudice, and the trial judge acted within her discretion in admitting it.
4. The prosecutor's statement that the jailhouse informant obtained details from the defendant, described as getting them from the 'only living witness,' was not a comment on the defendant's failure to testify when considered in context.
5. The jury instructions were sufficient even though the judge did not expressly instruct the jury to scrutinize the immunized witness's testimony with great care or that the Commonwealth was not vouching for the witness.
6. The Supreme Judicial Court found no basis to reduce the degree of guilt or order a new trial under its extraordinary powers.

Key quotations

Factual background

The defendant was convicted of shooting and killing a victim in a contract killing arranged by James Brescia, who wanted the victim killed because of the victim's relationship with Brescia's wife. While held at the Old Colony Correctional Center, the defendant shared a cell with an inmate and made statements admitting his involvement, including statements about the murder weapon, a map, and payments. The inmate later reported the information to police and prosecutors, and eventually received favorable treatment in other criminal matters, but the record showed that officials repeatedly denied making promises and instructed him not to question the defendant or obtain information on the Commonwealth's behalf.

Procedural history

Indictments were returned in the Middlesex Superior Court Department on June 26, 2006. A pretrial motion to suppress statements to a jailhouse informant was heard and denied by Judge Leila R. Kern, who also presided over the trial. The defendant was convicted of deliberately premeditated murder and conspiracy to commit murder, and the Supreme Judicial Court affirmed the judgments and declined to reduce the degree of guilt or order a new trial.