133 N.E.3d 306
Mass.2019Background
- May 22, 2009: Juan Caba was shot and killed during an early‑morning break‑in; the victim was blind and his girlfriend (Tori) was injured by the same projectile.
- June 22, 2009: Colon was arrested in Lawrence for an unlicensed firearm; police conducted two recorded interviews that evening; while in booking he spoke briefly with his girlfriend Giana on a police officer’s cell phone.
- June 23, 2009: While detained, Colon requested to speak with a known officer, waived Miranda, consented to recording, and confessed to participating in the break‑in, claiming he served as lookout and that someone else fired the fatal shot.
- Trial: Colon’s June 23 statement was central to the Commonwealth’s case; a cooperating inmate testified the defendant said he shot the victim. A jury convicted Colon of first‑degree (felony) murder; lesser charges were handled at sentencing.
- Posttrial motion and appeal: Colon moved for a new trial, arguing ineffective assistance because counsel failed to (a) use the June 22 recordings and the Giana phone call to challenge voluntariness and (b) request a DiGiambattista instruction for an unrecorded portion of the June 23 Miranda/waiver exchange; the motion judge denied relief and the SJC affirmed.
Issues
| Issue | Commonwealth's Argument | Colon's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for not using the June 22 recordings and the booking‑area phone call to challenge voluntariness of the June 23 confession | Omissions were not prejudicial: the phone call was not a police ruse, the call/recordings would not have shown coercion, and judge credibility findings support voluntariness | Counsel’s failure prejudiced Colon because the call conveyed police threats to Giana, which undermined voluntariness of Colon’s waiver/confession | Court held counsel’s failure was poor performance but not prejudicial; phone call not shown to contain threats and recordings would not likely have changed outcome |
| Whether counsel erred by not requesting a DiGiambattista jury instruction for unrecorded portions of interrogation | Any omission was harmless: nearly the entire interrogation was recorded, Colon initiated the June 23 contact, and the unrecorded portion was brief/introductory | Counsel should have requested the instruction because the initial Miranda/waiver exchange was unrecorded and the booking call was unrecorded | Court held counsel erred in not requesting the instruction as to the unrecorded Miranda intro, but the omission was harmless and did not create substantial likelihood of a miscarriage of justice |
| Whether the June 23 statement was voluntary | Statement was voluntary beyond a reasonable doubt: Colon initiated the interview, was lucid, received warnings, and no coercive promises were made | Statement was involuntary because of police threats to Giana, implied promises, Colon’s alleged drug use, and emotional distress from the call | Court held the statement was voluntary under the totality of the circumstances: no coercive promises, Colon was clear‑headed, and the recorded portion and waiver supported voluntariness |
| Whether relief under G. L. c. 278, § 33E (reduce verdict/new trial for disproportionate culpability) is warranted | Conviction proportionate to Colon’s participation; jury could find active involvement beyond a remote role | Verdict disproportional because Colon claimed only lookout role and others were not charged | Court denied § 33E relief; Colon’s role supported first‑degree (felony) murder conviction |
Key Cases Cited
- Commonwealth v. DiGiambattista, 442 Mass. 423 (instruction cautioning juries when custodial interrogation is not completely recorded)
- Commonwealth v. Baye, 462 Mass. 246 (totality‑of‑circumstances test for voluntariness and effect of promises/inducements)
- Commonwealth v. Durand, 457 Mass. 574 (framework for assessing whether will was overborne during interrogation)
- Rhode Island v. Innis, 446 U.S. 291 (definition of interrogation and "functional equivalent" analysis)
- Arizona v. Mauro, 481 U.S. 520 (recorded third‑party conversations not necessarily equivalent to interrogation)
- Commonwealth v. Vacher, 469 Mass. 425 (harmlessness of brief unrecorded introductory Miranda exchange)
- Commonwealth v. Woodbine, 461 Mass. 720 (DiGiambattista warranted where police recorded selectively as part of a staged interrogation)
- Edwards v. Arizona, 451 U.S. 477 (limits on police‑initiated interrogation after invocation of rights)
- Commonwealth v. LeBlanc, 433 Mass. 549 (voluntariness requires rational intellect and free will)
- Commonwealth v. Monroe, 472 Mass. 461 (threats to third parties can render a confession involuntary when communicated to defendant)