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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
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Commonwealth v. Rivera, 424
Supreme Judicial Court of Massachusetts, Hampden.
Argued
Decided
James A. Couture, Belchertown, for defendant.
Jane Davidson Montori, Assistant District Attorney,
for Commonwealth.
Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY and
MARSHALL, JJ.
ABRAMS, Justice.
Convicted
on two indictments charging murder in the first degree and on one indictment
charging unlawful [424 Mass. 267] carrying of a firearm, the defendant,
Luis Fernando Rivera, Jr., appeals claiming that: (1) the judge improperly denied his motion to
suppress; (2) the Commonwealth
improperly interfered with his right to interview witnesses; (3) the judge erred in admitting evidence
regarding a drug organization of which the defendant was not a member; (4) the prosecutor made improper prejudicial
statements during his closing argument;
and (5) the judge erred in refusing to instruct the jury regarding the
Commonwealth's failure to test for gunpowder residue. The defendant also asks that we exercise our
power under G.L. c. 278, § 33E, to order a new trial. We affirm the convictions and decline to
exercise our power under § 33E in favor of the defendant.
The
evidence in the light most favorable to the Commonwealth, Commonwealth v. Salemme, 395 Mass. 594, 595, 481 N.E.2d 471
(1985), showed that Pedro Ramos, the head of an extensive drug organization in
Holyoke, ordered the killing of two persons to avenge wrongs which Ramos
believed those persons had committed against him and his operation. One had assisted the police in the
preparation for the execution of several search warrants which had led to the
seizure of extensive physical evidence and to the arrest of Ramos and several
other members of his drug organization.
(FN1)
The
evidence warranted the jurors' concluding that a member of Ramos's drug
organization planned the murders and hired the defendant to carry out Ramos's
order. The girl friend of one of the
victims told police about an eyewitness, who, in turn, waived his Miranda
rights and gave a detailed statement implicating the defendant and others in
the murders. The police arrested the
defendant based on this information. The
eyewitness (FN2) said that he was ordered to drive the two victims, the
defendant, and a co‑defendant, Iran Diaz, (FN3) to the scene of the
murders. The eyewitness said that the
victims were dragged from the vehicle, and that the defendant shot one victim
in the chest. That victim died within [424
1. Motion to suppress. The defendant claims error in the denial of
his motion to suppress a statement made to the police. He argues that the police improperly obtained
the statement by questioning him after he had asserted hisMiranda rights during the booking process.
At the
hearing on the motion to suppress, the booking officer who had advised the
defendant of the Miranda warnings
initially said that he had asked the defendant if he understood the warnings
and waived them. That officer initially
said that the defendant replied in the negative. However, on recall, the officer testified
that he had responded incorrectly because he had been confused about the
questions. The officer then amended his
testimony, stating that he never had asked the defendant about waiver, and
therefore had marked "no" on the portion of the booking sheet
regarding a Miranda waiver. That procedure was meant to indicate that the
booking officer never obtained a waiver from the defendant. The officer explained that it is not the
responsibility of booking officers to interrogate defendants or to ask them if
they wish to make statements.
During the
booking process, the defendant never asked for an attorney, the defendant was
not questioned about the crimes for which he was arrested, and he did not make
any statements about the crimes. After
the booking process was completed, the defendant was placed into a cell. Three and one‑half hours later, other
police officers questioned the defendant and obtained the statement at
issue. However, before any questioning
ensued, these officers first administered a fresh set of Miranda warnings, and the defendant expressly waived his rights.
[1] The
motion judge found beyond a reasonable doubt that the defendant had knowingly,
willingly, and intelligently waived the
Miranda warnings, and that the statement the defendant made after receiving Miranda warnings was voluntary. The judge credited the booking officer's
amended testimony and found that the defendant did not assert his rights during
the booking process. The defendant
claims that the judge's determination was clearly erroneous in light of the
discrepancy in the booking officer's testimony.
We disagree.
[2][424 Mass. 269] "In reviewing a judge's determination regarding a knowing
waiver of Miranda rights and voluntariness,
we 'grant substantial deference to the judge's ultimate conclusions and we will
not reject a judge's subsidiary findings if they are warranted by the
evidence.' " Commonwealth v. Shine, 398 Mass. 641,
651, 500 N.E.2d 1299 (1986), quoting
Commonwealth v. Benoit, 389 Mass. 411, 419, 451 N.E.2d 101 (1983). The motion judge specifically determined that
the booking officer's amended testimony and the explanation given for the
discrepancy was "entirely credible."
The question is clearly one of credibility for the finder of fact. We do not substitute our judgment for that of
the fact finder. See Commonwealth v. Mello, 420 Mass. 375, 384, 649 N.E.2d 1106 (1995).
[3][4] The
motion judge alternatively found that even if the defendant had invoked his rights
during the booking process, in the totality of the circumstances, "the
passage of time and the fresh set of
Miranda warnings would be sufficient to create a valid waiver." We agree.
As the judge correctly noted, there is no per se rule proscribing the
resumption of questioning after a defendant has invoked his or her right to be
free from interrogation. See Michigan v. Mosley, 423 U.S. 96, 102‑103,
96 S.Ct. 321, 325‑26, 46 L.Ed.2d 313 (1975); Commonwealth v. Watkins,
375 Mass. 472, 479, 379 N.E.2d 1040 (1978).
The proper inquiry in such circumstances is whether the defendant's right to silence or to counsel, once
invoked, was "scrupulously honored" before questioning resumed.
Mosley, supra at 104, 96 S.Ct. at 326‑27. Commonwealth v. Atkins, 386
Mass. 593, 598, 436 N.E.2d 1203 (1982).
The motion judge was warranted in concluding that this requirement was
satisfied because the booking officer never questioned the defendant, and other
officers did so only after three and one‑half hours had passed. Those officers had administered a fresh set of Miranda warnings, and the defendant had
waived his rights in writing. See, e.g., Commonwealth v. Santo, 375 Mass. 299,
304, 376 N.E.2d 866 (1978). There was no
error.
2. Right to access to witnesses. The defendant contends that the Commonwealth
impermissibly interfered with his access to three witnesses who testified for
the prosecution, thereby infringing on his right to prepare a defense and, in
turn, his right to a fair trial. See Commonwealth v. McMiller, 29
Mass.App.Ct. 392, 407‑409, 560 N.E.2d 732 (1990). For security purposes, the Commonwealth kept
secret the addresses of its witnesses, including Pedro Figuero, Yolanda Reyes,
and David Soto, [424 Mass. 270] during the pendency of the
trial. (FN4) Arrangements were made to afford the
defendant's counsel and investigator the opportunity to communicate and talk
with the witnesses by telephone through the district attorney's office.
When
telephoned, Figuero told the defendant's investigator that he did not want to
speak to defense counsel and the investigator.
Reyes met with defense counsel in person at the district attorney's
office and initially indicated that she was willing to speak to him and the
investigator alone. However, after the
prosecutor met privately with Reyes to explain her rights as a witness, Reyes
then indicated that she wanted the prosecutor to attend the interview with
her. Defense counsel refused to agree to
these conditions and left the office without speaking to Reyes. Soto initially spoke to defense counsel over
the telephone, answering some questions and refusing to answer others, but
shortly after a brief interruption by the district attorney, Soto terminated
the interview. We note that while under
oath, Soto stated on the record that he was "through answering
questions" when the district attorney entered the office.
At defense
counsel's request, the trial judge engaged in a colloquy first with Reyes and
then with Soto in accordance with
Commonwealth v. Carita, 356 Mass. 132, 142‑143, 249 N.E.2d 5
(1969). The judge clearly communicated
to Reyes and Soto that defense counsel's wish was to interview them
privately. (FN5) After the judge had advised them of their
rights as witnesses, both [424 Mass.
271] Reyes and Soto indicated that
they were willing to speak with defense counsel and his investigator, but only
in the presence of a representative of the district attorney's office. Defense counsel then conducted interviews of
both witnesses in the presence of a representative of the district attorney's
office.
[5][6][7]
It is clear that defendants are entitled as of right to access to witnesses who
are in the custody of the Commonwealth. Commonwealth v. Balliro, 349 Mass. 505,
516, 209 N.E.2d 308 (1965). That right encompasses
the opportunity for an interview. See Commonwealth v. Campbell, 378 Mass.
680, 699, 393 N.E.2d 820 (1979).
Witnesses may grant or refuse an interview with defense counsel as they
so choose. If they decide to let defense
counsel interview them, they have "the right to impose reasonable
conditions on the conduct of the interview." See G.L. c. 258B, § 3(m). (FN6) We conclude that Reyes's and Soto's
insistence on the presence of a representative of the district attorney's
office was well within their right to impose reasonable conditions on the
interviews.
[8]
Nothing in the record supports the defendant's claim that the Commonwealth
impermissibly interfered with or hindered access to these witnesses. Contrast
McMiller, supra at 407, 560 N.E.2d 732.
Although the district attorney did interrupt a telephone call between
Soto and defense counsel, the judge accepted the valid and reasonable
explanation the district attorney gave on
[424 Mass. 272] the record for
the interruption. (FN7) Moreover, both the district attorney and the
prosecutor later offered to arrange another opportunity for defense counsel to
speak with Soto without interruptions.
There is no basis for us to conclude the judge erred in his
determination.
The
defendant also alleges impropriety in the prosecutor's private meeting with
Reyes to explain her rights, but the record indicates that the prosecutor's
instructions to Reyes were in conformance with G.L. c. 258B, § 3 (m ), and with S.J.C. Rule 3:08, PF 3(b),
as appearing in 382 Mass. 799 (1981).
(FN8) The prosecutor did convey
to Reyes his preference to be present at her interview with defense
counsel. However, this comment does not
rise to the level of hindering access to a witness. The prosecutor clearly explained to Reyes
that she had the right to speak to defense counsel alone, and that defense
counsel had the right to speak to her alone.
It was her choice. Cf. Commonwealth v. Doherty, 353 Mass. 197,
211, 229 N.E.2d 267 (1967). There was no
evidence to indicate that Reyes's decision was not of her own choosing. Further, in these circumstances, any
potential for undue influence was removed by the judge's colloquy with Reyes
and Soto. (FN9) See Carita, supra at 142‑143, 249 N.E.2d 5.
[9] 3. Admission of evidence regarding the drug
organization. [424 Mass. 273] The defendant contends that the judge erred in admitting
testimonial and physical evidence regarding Ramos's drug organization because
the evidence went to Ramos's motive to kill the victims, and not to the
defendant's motive. The defendant
further argues that, where all parties acknowledged that the defendant was not
a member of the drug organization, the judge should have excluded this motive
evidence as prejudicial. The admission
of this evidence was a proper exercise of the trial judge's discretion. See, e.g.,
Commonwealth v. Dunn, 407 Mass. 798, 807, 556 N.E.2d 30 (1990).
The
Commonwealth's theory was that Ramos ordered the killings and the defendant was
hired to carry out that order because the victims had allegedly informed the
police of Ramos's drug organization, thereby causing the arrest of Ramos and
the destruction of his operation. In
these circumstances, the defendant's motive was inextricably linked to Ramos's
motive for ordering the murders of the victims.
See Commonwealth v. Borodine,
371 Mass. 1, 8, 353 N.E.2d 649 (1976), cert. denied, 429 U.S. 1049, 97 S.Ct.
760, 50 L.Ed.2d 765 (1977) ("if there is evidence of motive, that evidence
is admissible"). The prosecution
was entitled to present as full a picture as possible of the events surrounding
the alleged crime itself. Commonwealth v. Bradshaw, 385 Mass. 244,
269, 431 N.E.2d 880 (1982) ("[w]ithout the challenged evidence, the
killing[s] could have appeared to the jury as an essentially inexplicable act
of violence"). Moreover, the chance
of prejudice was minimized by the prosecutor's repeated statements that the
defendant was not a member of the drug organization, and by the judge's repetition
of special cautionary instructions concerning proper use of the evidence. See
Commonwealth v. Valentin, 420 Mass. 263, 270, 649 N.E.2d 1079 (1995);
Dunn, supra at 807, 556 N.E.2d 30.
4. Closing argument. The defendant also objects to the
prosecutor's use of the evidence regarding Ramos's drug organization during
closing argument. Because that evidence
was admissible, see section 3, supra,
the prosecutor was entitled to use it in argument. The prosecutor's remarks were grounded in the
evidence and the fair inferences to be drawn therefrom, and therefore there was
no error on this ground. [424 Mass. 274] See Commonwealth v.
Marquetty, 416 Mass. 445, 450‑451, 622 N.E.2d 632 (1993);
Commonwealth v. Paradise, 405 Mass. 141, 152, 539 N.E.2d 1006
(1989).
[10][11]
5. Refusal to instruct. The defendant argues that he was entitled
to, but did not receive, a jury instruction that the jurors could consider in
their analysis of the evidence the failure of the police to test for the
presence of gunpowder residue on the hands of the defendant and other suspects
arrested for the murders. The decision
whether to instruct the jury regarding the failure of the police to conduct
forensic tests lies within the discretion of the trial judge.
Commonwealth v. Cordle, 412 Mass. 172, 177, 587 N.E.2d 1372 (1992). See
Commonwealth v. Daye, 411 Mass. 719, 740‑741, 587 N.E.2d 194
(1992). The failure of the authorities
to conduct certain tests is a permissible ground on which to build a
defense. See Commonwealth v. Bowden, 379 Mass. 472, 485‑486, 399 N.E.2d
482 (1980). However, unlike Bowden, the judge did not improperly
remove this issue from the jury's consideration. The record establishes that the judge
specifically permitted the defendant to argue the failure to test in his
closing argument, and defense counsel did so.
See Cordle, supra at 177, 587
N.E.2d 1372 (it is the defense's job to argue to the jury the favorable
inferences to be drawn from the deficiencies in police investigation). Contrast
Bowden, supra (reversible error to instruct the jury not to consider lack
of scientific tests).
Moreover,
there was testimony that the gunpowder residue test was unavailable in the
Commonwealth and that had it been available, it would have been unreliable due
to the length of time that passed between the murders and the arrest of the
defendant and other suspects. There is
no evidence to indicate that the Commonwealth's failure to test was
unreasonable or calculated to deprive the defendant of potentially exculpatory
evidence. See Cordle, supra at 177, 587 N.E.2d 1372. The judge's refusal to comment specifically
on the failure of the police to conduct residue tests did not undermine the
defense and was not an abuse of discretion.
See id. at 178, 587 N.E.2d
1372.
6. G.
L. c. 278, § 33E. We have
considered the entire record pursuant to our obligation under G.L. c. 278, §
33E, and conclude that the interests of justice do not require a new trial or
the entry of a verdict of a lesser degree of guilt.
Judgments affirmed.
(FN1.) These events ultimately led to the
convictions of Ramos and several others for drug and firearms offenses. See
Commonwealth v. Alvarez, 422 Mass. 198, 661 N.E.2d 1293 (1996).
(FN2.)
The eyewitness testified that he was an unwilling participant who drove the
vehicle on pain of threat to his and his family's safety.
(FN3.)
Diaz was tried separately and convicted on two indictments charging murder in
the first degree and also of unlawfully carrying a firearm. See
Commonwealth v. Diaz, 422 Mass. 269, 661 N.E.2d 1326 (1996).
(FN4.)
On appeal, the defendant does not contest the denial of his motion to compel
the production of the current addresses of the Commonwealth's witnesses. There is ample evidence in the record of
threats to the safety of these and other witnesses to warrant the court's
refusal to order the prosecution to reveal the addresses of its witnesses. See
Commonwealth v. Cobb, 379 Mass. 456, 469‑470, 405 N.E.2d 97, vacated
on other grounds sub nom. Massachusetts v. Hurley, 449 U.S. 809,
101 S.Ct. 56, 66 L.Ed.2d 12 (1980), appeal dismissed, 382 Mass. 690, 414 N.E.2d
1006 (1981).
(FN5.)
[The judge to Reyes]: "You know I
think that [the defendant's] investigator would prefer to speak to you alone
because it may be that they want to ask you things that you don't want the other
side to know about, so you know that's what they would prefer. Now again, I am not going to order you, I am
not going to tell you what to do because it's your choice to make. If you spoke to [the prosecutor] by himself
or the police by themselves it may be you might want to think about giving
[defense counsel] the same courtesy. But
again that is up to you, but I will let you decide what you prefer to do."
[The judge
to Soto]: "Now, [defense counsel]
has told me that he would like to have some time with you, just to speak with
you before you testified. Now, [defense
counsel] is working hard on behalf of his client to give him a very good
defense and it would be something that he would appreciate, I'm sure, if you
would agree to spend some time with him today talking with him, just the two of
you.... Now, you don't have to do
it. I am not going to order you to do
it, but I think in fairness if you are going to speak to [the prosecutor] I am
in favor of you speaking to [defense counsel] by himself if you would do
that. Now, once again it isn't an order
for you to do it, but I ask it because I think it would be fair then to do so
for [defense counsel], for a few moments today to give him an interview in
preparation for your testimony."
(FN6.) General Laws c. 258B, § 3 (m ), as appearing in St.1995, c. 24, §
5, provides: "To provide victims a
meaningful role in the criminal justice system, victims and witnesses of crime
... shall be afforded the following basis and fundamental rights ... (m ) for victims and witnesses, to be
informed of the right to submit to or decline an interview by defense counsel
or anyone acting on the defendant's behalf, except when responding to lawful
process, and, if the victim or witness decides to submit to an interview, the
right to impose reasonable conditions on the conduct of the interview."
(FN7.) The district attorney explained that he
had not expected defense counsel to conduct the interview in his office where
his private notes and materials were on his desk. Rather, the district attorney expected
defense counsel to use the telephone in his office merely to determine whether
Soto was willing to grant an interview, and, if so, the district attorney
anticipated transferring the call to a private conference room for the
interview. The record also indicates
that, because of the length of the conversation in his office, the district
attorney was concerned that threats were being made.
(FN8.) Supreme Judicial Court Rule 3:08, PF
3(b), as appearing in 382 Mass. 799 (1981), provides: "A prosecutor should not discourage or
obstruct communication between prospective witnesses and defense counsel. It is unprofessional conduct for the prosecutor
to advise any person or cause any person to be advised to decline to give to
the defense information which he has the right to give. A prosecutor may properly inform such a
person that he has no duty to submit to an interview or to answer questions
propounded by defense counsel, and may advise him that, if he decides to talk
to counsel for the defense and does so, he (except when responding to lawful
process) may impose reasonable conditions, such as those designed to ensure his
own safety and the accuracy of any recording of his statements."
(FN9.)
We note that the defendant never asked the judge to engage in a colloquy with
Figuero pursuant to Commonwealth v.
Carita, 356 Mass. 132, 142‑143, 249 N.E.2d 5 (1969). In his brief, the defendant appears to make
no specific arguments regarding Figuero, other than that defense counsel was
not provided unrestricted access to him.
We reiterate that Figuero was within his rights as a witness to refuse
defense counsel an interview. G.L. c.
258B, § 3(m). See also
Commonwealth v. Doherty, 353 Mass. 197, 210, 229 N.E.2d 267 (1967).