Commonwealth v. Tran, 460 Mass. 535

Background

Six men were executed in the basement of an illegal Boston gambling parlor; one survivor, Pak Wing Lee, testified.
Defendants Siny Van Tran and Nam The Tham were extradited from Asia and tried in Boston (2001 joint trial) for five counts of murder in the first degree under theories of deliberate premeditation and extreme atrocity or cruelty.
Trial included severance motions; judge denied severance, finding defenses not mutually antagonistic and jury could assess eyewitness and other evidence.
Airline records listing Tran, Tham, and Hung Tien Pham as ticketed passengers on a post-crimes flight to Hong Kong were admitted to prove consciousness of guilt; authentication and hearsay objections were raised.
Tran’s post-arrest statement to Boston police raised Miranda and Rosario issues; Rosario’s six-hour delay-for-arraignment rule and potential tolling were central to admissibility; the interview occurred after a lengthy international transfer process.
The court affirmed convictions and declined relief under G. L. c. 278, § 33E, addressing multiple evidentiary and procedural challenges.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Severance warranted due to mutually antagonistic defenses	Tran contends severance required under Moran	Joint defense would be prejudiced by Tham’s impeachment of Lee; mutually antagonistic defenses	No severance required; defenses not mutually exclusive; evidence supported joint venture theory
Airline records admissible as business records and not impermissible hearsay	Records show defendants traveled together and support guilt	Hearsay; improper authentication; totem-pole problem; confrontation rights violated	Authentication proper; records admissible under G. L. 233, § 78 as business records; not hearsay for nontruth purpose; no confrontation violation; tokens admissible with limiting instruction
Consciousness of guilt instruction supported by evidence	Flight to Hong Kong shortly after murders implied guilt	No independent basis tying defendants to flight or knowledge of arrest	Instruction proper; temporal nexus and flight evidence support inference of consciousness of guilt
Suppression or admissibility of Tran’s statement under Rosario and Miranda	Rosario six-hour rule applied; waiver valid; Miranda satisfied	Rosario warnings defective; translation issues; potential coercion; six-hour tolling appropriate	Rosario tolling appropriate given exceptional circumstances; Miranda waiver valid; statement admissible; Rosario analysis did not require suppression
Prosecutor's opening/closing remarks and potential improper vouching	Statements served to emphasize atrocity and credibility of witnesses	Inflammatory rhetoric and improper vouching; potential prejudice	No reversal; remarks classified as excusable hyperbole or permissible argument; curative instructions adequate

Key Cases Cited

Commonwealth v. Moran, 387 Mass. 644 (1982) (defense severance not per se required when defenses not mutually exclusive)
Commonwealth v. Bienvenu, 63 Mass. App. Ct. 632 (2005) (mutual antagonism requiring severance definitions)
Commonwealth v. Stewart, 450 Mass. 25 (2007) (mutual antagonism and prejudice standards in severance)
Wingate v. Emery Air Freight Corp., 385 Mass. 402 (1982) (business records reliability and totem-pole concerns; liberal interpretation of 233, §78)
Commonwealth v. DeBrosky, 363 Mass. 718 (1973) (hearsay and business records with identity verification issues)
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (testimonial evidence triggers confrontation rights; business records generally non-testimonial)
Commonwealth v. Gonsalves, 445 Mass. 1 (2005) (confrontation analysis in admissibility of testimonial evidence)
Rosario v. Massachusetts, 422 Mass. 48 (1996) (six-hour rule for pre-arraignment questioning and its tolling)
Commonwealth v. Toney, 385 Mass. 575 (1982) (consciousness of guilt instructions and their limits)
Commonwealth v. Otsuki, 411 Mass. 218 (1991) (flight evidence as consciousness of guilt)