COMMONWEALTH v. EDUARDO MARTINEZ (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from convictions of resisting arrest and other offenses ¹ arising from an incident in which police tried to arrest him on an outstanding warrant. He argues that his trial should have been severed from that of his codefendant. He also asserts that the judge abused his discretion in admitting evidence that police had a warrant for the defendant's arrest, that police had pretended to arrange a drug deal with him to learn his location, and that he had denied police accusations of guilt. We affirm the convictions.

Background. We recite the facts the jury could have found. In May 2021, numerous police officers sought to arrest the defendant on an outstanding warrant. One officer sent the defendant a text message asking to buy drugs, and the two eventually agreed to meet at a car wash. Numerous officers then went to the car wash, arriving separately in unmarked vehicles and wearing plain clothes.

The defendant was at the car wash with his girlfriend, Felicia Drew, who was previously unknown to the police. When police arrived, a detective got out of his vehicle and began approaching the couple, yelling “police.” Two other officers approached on foot.

The defendant and Drew ran to get into their car, and the officers approached the driver's side, attempting to remove the defendant from the car. The car was then started and the defendant drove it forward out of the car wash bay. One of the detectives became trapped between the open car door and the side of the car, sustaining bruises. Another detective was dragged a short distance before letting go, sustaining “minor abrasions.” The defendant drove away, nearly hitting a third officer and an unmarked police car.

Two days later, police tried to arrest the defendant at his house, but he escaped through a window. They arrested Drew later that day. The defendant was arrested without incident the following day. In an interview with police, he denied knowledge of the events at the car wash and asserted that he had been at home at the time.

The Commonwealth expressed its intention to join the defendant's and Drew's cases, at which point the defendant moved to sever them. The judge denied the motion. Drew was the codefendant at trial. The defendant's theory at trial was effectively self-defense: that he did not realize that he was being approached by police, believed instead that he was being robbed, and tried to get away. Drew's theory, similarly, was that she did not know that the approaching men were police. She also challenged the credibility of testimony that she had started the car and helped steer as it drove away. The jury found the defendant guilty of six charges and Drew of three.²

Discussion. 1. Motion to sever. The defendant argues that he and Drew asserted antagonistic, mutually exclusive defenses, so that the judge abused his discretion in denying the motion to sever. The defendant argues that Drew's defense was in effect to point the finger at him: she highlighted that she had no prior involvement with police, was seated in the passenger seat of their car rather than driving, and did not try to escape when police came to arrest her days after the incident. We are not persuaded.

Joinder and severance are ordinarily committed to the sound discretion of the trial judge. See Commonwealth v. McAfee, 430 Mass. 483, 485 (1999). Severance is not required merely because it would give one defendant “a better chance of acquittal,” id. at 486, or because the defenses are “hostile or inconsistent,” Commonwealth v. Henley, 488 Mass. 95, 123 (2021). “Rather, severance is mandated only if [the defendants’] defenses conflict to the point of being mutually antagonistic and irreconcilable,” resulting in prejudice so compelling as to deny a defendant a fair trial. McAfee, supra. It must be the case that “the acceptance of one party's defense will preclude the acquittal of the other” (citation omitted). Henley, supra. See Commonwealth v. Moran, 387 Mass. 644, 658-659 (1982).

This case presented no such problem. The jury could have accepted both (1) Drew's defense that she did not know the men were police, and that it was the defendant who started the car and drove it away; and (2) the defendant's defense that he did not know the men were police, thought he was being robbed, and so drove away. That Drew implicitly contrasted the defendant's conduct to her own, by arguing that she had no prior involvement with police, did not start or steer the car, and did not try to escape when police later came to arrest her, might have made her position “hostile” to the defendant's, Henley, 488 Mass. at 123, but those asserted facts were neither essential to her defense nor, if accepted, fatal to the defendant's.³ The judge did not abuse his discretion in denying the motion to sever.

2. Evidence of outstanding warrant. The defendant argues that it was an abuse of discretion for the judge to admit evidence of the defendant's outstanding warrant, because that evidence was substantially more prejudicial than probative. See Mass. G. Evid. § 403 (2026) (evidence may be excluded if its probative value is substantially outweighed by risk of unfair prejudice). We are unconvinced.

“In proving the crime of resisting arrest, the Commonwealth was required to establish that the officers were trying to effect an arrest of the defendant. The arrest warrant was therefore highly relevant to that element of proof.” Commonwealth v. Grant, 71 Mass. App. Ct. 205, 210–211 (2008). A second element of the crime is that the officer was “acting under color of his official authority.” G. L. c. 268, § 32B. See Commonwealth v. Manolo M., 496 Mass. 244, 255 (2025). The existence of a warrant is plainly relevant to that issue. That the police, when they approached the defendant at the car wash, may not have told him that they had a warrant for his arrest is immaterial, where there was ample other evidence to prove the requisite knowledge on the part of the defendant that he was being arrested. See Grant, supra at 208-209; Commonwealth v. Lawson, 46 Mass. App. Ct. 627, 629–30 (1999).

Nor was the evidence unfairly prejudicial. No details of the warrant were mentioned. The judge gave a limiting instruction that the jury could only consider the warrant to explain police conduct and, if relevant, the defendant's state of mind; and the instruction was given both when testimony was first elicited and as part of the final charge. The instruction further told the jury that warrants may issue for any number of reasons and do not necessarily reflect guilt of anything. As in Grant, 71 Mass. App. Ct. at 211, these factors helped to minimize any unfair prejudice to the defendant. The judge did not abuse his discretion in admitting evidence of the warrant.

3. Evidence of pretextual drug buy. The defendant argues that the judge abused his discretion in admitting evidence that the defendant, in a text message exchange with a person who turned out to be a police officer, had agreed to sell the person fentanyl. Because the defendant did not object at trial, we review for whether the decision to admit the evidence created a substantial risk of a miscarriage of justice.

“In making that determination, we consider the strength of the Commonwealth's case against the defendant (without consideration of any evidence erroneously admitted), the nature of [any] error, whether the error is sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error, and whether it can be inferred from the record that counsel's failure to object was not simply a reasonable tactical decision” (quotations, footnote, and citations omitted).

Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

Here, not only did the defendant not object, but defense counsel affirmatively agreed before trial that testimony about the text messages (although not the text messages themselves) would be admissible. The defendant then incorporated the drug deal into his defense strategy, with defense counsel's opening statement acknowledging that the defendant went to the car wash to sell drugs and then tried to get away quickly when approached by a man dressed all in black. In closing argument, defense counsel attempted to explain the defendant's flight by suggesting that the car wash was in a high crime area, it was dark, and “both sellers and users get robbed at much higher rates than civilians who are not engaged in [drug] activity. They're more susceptible to [being] met with violence․ And the fact would always be in the back of someone's mind when they are about to conduct a drug transaction.” Thus, when the defendant saw the men approaching, he was “terrified” and fled in the car with Drew. We have no doubt that the defendant's failure to object to the drug ruse evidence was “simply a reasonable tactical decision” (citation omitted). Alphas, 430 Mass. at 13.

Turning to the other Alphas factors, the Commonwealth's case apart from that evidence was strong. It included a surveillance video recording of the incident and eyewitness testimony from six police officers present at the car wash. As for the nature of the claimed error, the defendant argues that the drug ruse evidence served simply as a prior bad act, which had little probative value and “gratuitously portrayed [him] as a dangerous drug dealer with a criminal past.” See generally Commonwealth v. Crayton, 470 Mass. 228, 249 (2014) (discussing limited admissibility of prior bad acts evidence). But the evidence was relevant, as the judge explained to the jury, “solely ․ to the context of the encounter and the state of mind of the involved officers and [the defendant] at the time of the alleged crimes.” As for the significance of the evidence in the context of the trial as a whole, the potential for prejudice was limited by the judge's questions during jury voir dire ⁴ and his instruction that the evidence could not be considered as proof that the defendant had a criminal personality or as a substitute for proof that he committed the crimes charged. We therefore see no substantial risk of a miscarriage of justice.

4. Denials of guilt. Finally, the defendant argues that the judge erroneously allowed in evidence, as relevant to consciousness of guilt, the defendant's postarrest responses to what he asserts were police accusations, in which he denied going to the car wash on the date in question and denied any knowledge of either the incident that occurred there or of how Drew's car might have gotten there.⁵ The defendant invokes the rule that “[e]xtrajudicial accusatory statements made in the presence of a defendant, which he has unequivocally denied, are hearsay and inadmissible as evidence of guilt in the Commonwealth's case-in-chief” (footnotes omitted). Commonwealth v. Womack, 457 Mass. 268, 272 (2010). He also cites the court's statement that “if inconsistent statements of denial by a defendant in response to police accusations were admissible as consciousness of guilt, ‘the rule prohibiting evidence of statements of denial would be eviscerated.’ ” Commonwealth v. Spencer, 465 Mass. 32, 50 (2013), quoting Commonwealth v. Diaz, 453 Mass. 266, 273 (2009), overruled on other grounds by Womack, supra at 274.

But the Spencer and Diaz decisions excluded out-of-court denials that were inconsistent either with each other, see Spencer, 465 Mass. at 50-51, or with the Commonwealth's proof at trial, see Diaz, 453 Mass. at 273. The rule is different where, as here, an out-of-court denial is inconsistent with a defendant's own position at trial. In these circumstances, the denial is admissible to show consciousness of guilt. See Commonwealth v. Bonnett, 472 Mass. 827, 838-839 (2015), S.C., 482 Mass. 838 (2019).

In Bonnett, the defendant had initially told police that he was not at a certain nightclub on the night of a shooting, whereas defense counsel's opening statement conceded that that statement was untrue. Bonnett, 472 Mass. at 838. A recording of the defendant's statement to police was thus admissible, as evidence of “a false statement ․ to show consciousness of guilt” (quotations omitted). Id. at 839, quoting Commonwealth v. Lavalley, 410 Mass. 641, 649 (1991).⁶ The Diaz court recognized this distinction, noting that the defendant in Lavalley “had given one version of events to the police and then testified to a different version at trial,” making his statement to police admissible to show consciousness of guilt, whereas in Diaz itself “there was simply a denial of various police accusations,” which was inadmissible. Diaz, 453 Mass. at 274.

A case similar to Bonnett is Commonwealth v. Rivera, 97 Mass. App. Ct. 285 (2020), where the defendant initially denied police accusations that he was at the scene and had “kill[ed] a kid,” id. at 287, but then at trial admitted his presence and argued self-defense, see id. at 286-287, 293. The Rivera court acknowledged the Bonnett rule, Rivera, supra at 292, but -- rather than holding the statements to police admissible under Bonnett -- stated that “even if we were to assume” that the statements were inadmissible, there was no substantial risk of a miscarriage of justice, where other evidence of the defendant's “apparently false narrative, probative of consciousness of guilt ․ was already before the jury.”⁷ Rivera, supra at 293.

Here, instead of assuming arguendo that the defendant's responses to police questions were inadmissible, we follow Bonnett. Here, as in Bonnett, defense counsel's opening statement conceded facts that the defendant had denied in his police interview. He had denied going to the car wash and denied knowledge of the incident there or of how Drew's car might have gotten there. Counsel's opening statement, however, acknowledged that the defendant was at the car wash, washing the car, when a man dressed in black “charge[d] at him,” prompting him (and Drew) to get into the car to “retreat.” Because the defendant was now taking a position directly contrary to his statements to police,⁸ there was no abuse of discretion in admitting evidence of those statements to show consciousness of guilt. See Bonnett, 472 Mass. at 839.

Judgments affirmed.

FOOTNOTES

1.   These were one count of assault and battery with a dangerous weapon (ABDW), one count of assault and battery on a police officer (ABPO), leaving the scene of an accident after causing personal injury, reckless operation of a motor vehicle, and failure to stop for a police officer. The defendant was later convicted in a jury-waived trial of the habitual offender portion of the ABDW indictment.

2.   These were ABDW, ABPO, and resisting arrest.

3.   That she was not known to police could also have bolstered the defendant's defense, by explaining why she (as well as he) was scared by the approach of the men and thus anxious to get away in the car. That she may not have started or steered the car was immaterial to the defendant's defense, where defense counsel's closing argument conceded that he was driving. And that she did not try to escape the police when they later came to arrest her, whereas the defendant escaped through a window when they came to his house, may have highlighted his consciousness of guilt, but was not inconsistent with his defense, where none of the charges against him arose out of that escape.

4.   The judge told prospective jurors that they might hear evidence of the attempted sale of fentanyl and asked whether they or anyone close to them had been affected by substance abuse such that it might be difficult for them to be fair and impartial. In closing argument, defense counsel reminded jurors, “you are all here today sitting on this jury because you indicated ․ that you would still be fair and impartial if you heard about any drug dealing or drug user.”

5.   We doubt whether the police questions to the defendant constituted accusations, although we need not rest our decision on that ground. See Commonwealth v. Cruzado, 480 Mass. 275, 278 (2018) (negative answers to questions that did not accuse defendant of criminal activity admissible). The defendant also challenges the admission of his statement, when police asked where he was on the day in question, that he was at home. This was not an accusation, was not denied, and the Commonwealth did not argue it was false. We need not discuss it further.

6.   Lavalley was overruled on other grounds by Commonwealth v. King, 445 Mass. 217, 248 n.28 (2005), cert. denied, 546 U.S. 1216 (2006).

7.   Although it is not entirely clear why the Rivera court went beyond merely applying Bonnett, we see no need to do so here, particularly where we doubt that the police questions to the defendant constituted accusations. See note 5, supra.

8.   Defense counsel's closing argument conceded that the defendant had lied to police, but emphasized that “he's not charged with lying.”