Between late afternoon of May 10, 1975, and sometime after midnight of May 11, a number of incidents, with some attendant violence, occurred at the Julian Steele Housing Project in Lowell pitting “Puerto Rican” against “American” residents or adherents.
1
About 12:30 a.m., or later, a young woman, seventeen-year old Sylvia Cormier, standing outside 92-94 Shaughnessy Terrace, part of building 3 of the project, was killed by a bullet to the head fired from a .22 caliber gun. The defendant Alicea was indicted for the murder of Cormier and also for possession of a firearm without license and for unlawfully discharging a firearm within the city limits of Lowell. He was found guilty by a Middlesex jury of murder in the second degree and of the other two offenses.
2
Appealing from the judgments of conviction to this court pursuant to G. L. c. 278, §§ 33A-33G, the defendant contends that the trial judge committed errors in
1. Motion to suppress. We accept (and here restate and elaborate somewhat upon) the facts as found by the judge on the defendant’s motion to suppress, heard at voir dire before trial. The defendant with two other men was brought to the main room of the criminal bureau at the Lowell police station about 1:25 a.m., May 11. A radio transmission had informed Inspectors Peter Gickas and John Sullivan, on duty in the station at that time, that a shooting had taken place at the project and that three possible witnesses would be arriving. Gickas approached the defendant 3 and, before any material exchange, read him the usual Miranda warnings, but as the defendant responded with an equivocal gesture to the question whether he understood English, Gickas attempted to sound the words from a card in Spanish. Shortly he abandoned the effort and telephoned an interpreter, Efrain Rivera. Seeing the interpreter enter the place some minutes later, the defendant said in Spanish, "I’m in a lot of trouble,” but further conversation was stopped when Gickas directed the interpreter to get on with the Miranda warnings. The interpreter read the Spanish card and emphasized the importance of the choice involved; the defendant said he understood. The interpreter apprehended that the defendant had been drinking, and the defendant later told him he had been drinking heavily; but the defendant was not disabled through intoxication and was carrying on rational discourse. 4
The group retreated to the hallway outside the guard room. Now, said Sullivan, the matter was serious and the defendant could and would be charged with assault with a dangerous weapon and firearm violations; 8 he could help the police and himself by producing the weapon and telling his story. The defendant said he had fired a gun into the air. Sullivan said there was a test by which it could be determined whether an individual had fired a weapon recently. 9 The defendant then said he had fired into a crowd two or three times and seen someone go down. Would he be willing to take the police to the gun? The defendant agreed.
The party then moved out to find the location, but stopped first at 81 Chippewa Street. Word had been communicated to Gickas by other police investigating the crime that the defendant had worn earlier that night a white turtleneck sweater or shirt — when he appeared at the police station he was wearing a three-quarter length brown leather coat or jacket and yellow, bell-bottomed, cuffed trousers, but was shirtless. The defendant said the shirt could be found at the house of one of the Curet family nearby at the address mentioned. Gickas entered the house through a rear window — the place was locked, no one within — and in a bathroom he discovered a white turtleneck which the defendant acknowledged. With guidance from the defendant, the party went on for about two miles and finally stopped at railroad tracks near the loading platform of the Prince macaroni company. With the use of a metal detector, the defendant’s .22 caliber revolver (¡empty of cartridges) was found covered over lightly by stones between railroad ties.
Returned to the sergeant’s room at the police station about 6 a.m,, the defendant was given his Miranda warnings in Spanish and signed a waiver of rights form in
On the foregoing evidence brought out in testimony at voir dire by Gickas and Rivera, the sole witnesses, the judge denied the motion to suppress, overruling claims of irregularity in the Miranda warnings, or impropriety in the conditions of the identification, and of unjust coercion of the defendant resulting in an unintelligent waiver of rights on his part (a claim addressed particularly or especially to the admission of the written statement).
In this court the defendant makes the fresh contention
13
that he was under illegal arrest, i.e., arrest without probable cause, when he appeared at the police station, and because of this violation the Commonwealth should be barred the use of the evidence subsequently obtained. The case is sought to be analogized to
Brown
v.
Illinois,
As to the Miranda warnings proper, they were first given before the situation became custodial, and may be understood as a step out of abundant caution to counteract any coercive element inhering in an interview at a police station. Cf.
Oregon
v.
Mathiason,
We also agree with the judge that there was nothing contrary to due process about the scene in the guard room. We have dealt on other occasions with the question of bringing a suspect before the victim or witnesses of a very recent crime for "one on one” identification — or exoneration. Of these tests we said in
Commonwealth
v.
Barnett,
pect while his recollection or mental image of the offender is still fresh, before other images crowd in or his attempts to verbalize his impressions can themselves distort the original picture, provides the witness with good opportunity for an accurate identification.... A further consideration is that prompt confrontation yielding a negative result, besides freeing the innocent, informs the police that a possible predisposition on their part is or may be in error and releases them quickly to follow another track.... The general view that such speedy con
Finally, responding to any claim that the defendant’s statements or demonstrative acts were in some sense “involuntary,” we find no reason to cavil with the judge’s opinion that the defendant understood his predicament and was not overborne by drink, fatigue, or pressure from the police. Compare
Commonwealth
v.
Sires,
2. Motion for directed verdict at close of Commonwealth’s case. We pass to the trial. The question under the present heading reduces to whether the jury could find beyond a reasonable doubt that it was the defendant — not some other person engaged in violence that night — who was responsible for the death. We conclude that the jury could so find, and we need only mention the main elements of the proof which, if believed, as they well could be, established that the defendant was the culpable actor.
The witnesses Gickas and Rivera, testifying for the Commonwealth at trial, gave in substance the evidence, bearing against the defendant, which they had given at voir dire.
16
In addition, we point to the direct observations testified to by the Commonwealth witnesses Barbara Lowe, Raymond Saab, Neil Batstone, Stephan Murphy,
Lowe, from the second floor of 8 Murray Terrace (at building 4 of the project), looking across that street to building 10 fronting on Shaughnessy Terrace, saw two men near that building during the moments which can be taken to be those when shots, including the fatal shot, were fired. One of the men, seen under adequate lighting, conformed in dress to the clothing the defendant is proved to have worn. Standing at a tree outside number 10, he was yelling "Come on, you Yankees. You want more — I’ll give you more.” He was facing up Shaughnessy in the direction of building 3 (with address numbers 84-94 Shaughnessy) and in his outstretched hand he held a small object which was firing and sparking. There was no fire from the other man. 17
Saab was standing with a number of acquaintances, including Sylvia Cormier, outside building 3. (Sylvia had appeared there about 11:30 p.m.) About 12:30 a.m. someone was heard yelling from Murray Terrace, below, "There they are.” Looking down Shaughnessy Terrace, Saab saw two men in the vicinity of building 10 perhaps 100 feet away. One near the sidewalk was a Puerto Rican with moustache and goatee and clothing all descriptive of the defendant that night. He was holding a gun in his outstretched hand. One Brian Murphy on the other side of Shaughnessy from Saab exclaimed, "I’m hit.” Immediately thereafter Saab saw a spark at the hand of the gunman below and heard a second shot and felt Sylvia fall across him. Within moments two men came up Shaughnessy from Murray Terrace and approached Saab and the fallen victim; one was the man previously described whom Saab identified as the defendant. This man said in English with Spanish accent, "We’re sorry. We shot the wrong one.” The two turned and walked rapidly down Shaughnessy. 18
Stephan Murphy (brother of Brian) heard gunshots around 12:30 a.m. He ran out of204 Shaughnessy toward these sounds and saw three Puerto Rican men in the vicinity of building 10. One, whom he identified by appearance and garb as the defendant, was running "up” Chippewa Street, which we take to mean in a northerly direction that would take him to or past 81 Chippewa. Murphy continued on Shaughnessy and saw Sylvia lying on the ground. Saab was there.
Officer Sargentelli, on single patrol, answering a call at 12:58 a.m., went to 92 Shaughnessy and found Sylvia on the sidewalk; a sizeable crowd was now gathered. He was told the culprit had run to Chippewa Street. Going on foot to the junction of Shaughnessy and Chippewa, he saw a
State Trooper Duke, assigned to firearms identification, received for analysis the gun (a .22 caliber revolver, of Rohm manufacture, holding seven cartridges) and a small lead fragment and part of a .22 caliber projectile removed from the victim’s head at the autopsy on May 11. Test fired projectiles from the revolver showed eight lands and grooves with a directional right twist. As the spent projectile had been damaged through impact, it showed only four lands and grooves but these had the same spacing and directional twist as the test firings. Trooper Duke gave it as his opinion that the spent projectile was consistent with having been fired from that revolver, but he could not say positively that it had been so fired.
We are in agreement with the trial judge that it would have been an illegal invasion of the jury’s province to direct a verdict on any of the indictments at the close of the Commonwealth’s case. See
Commonwealth
v.
Clifford,
3. Remarks on defendant’s case. The defense offered proof. There was no motion for a directed verdict at the close of all the evidence, and thus a motion noted on the docket as made five days after verdict under G. L. c. 278, § 11, for entry of a verdict of not guilty or for a new trial, did not have its required predicate and was irregular; in all events it was not pressed or ruled on. However, we may say that the defendant’s case did not so shake or confound the Commonwealth’s case as to provide any plausible basis for affirmative action on a § 11 motion, or, it may be added, for any extraordinary relief under G. L. c. 278, § 33E.
Roberto Curet testified that he had not accompanied the defendant from Boston on May 10, but that the defendant arrived at 81 Chippewa with Delores Curet around 8 p.m. (Delores was not offered as a witness.) After 10 p.m., perhaps between 10:30 and 11 p.m., a group including Roberto and the defendant left to "fight,” as there had been a threat to burn the house. Roberto’s party was shot at and bombarded with rocks, bats, and gas bombs, so one of the party who had a gun fired in the air. Roberto took the man’s gun.
20
Roberto claimed a Fifth Amendment
There was further testimony by members or friends of the Curet family to the general effect that the defendant was with them at the Chippewa address when the fatal shooting occurred. 22
We need not dwell on the inconsistencies between the Commonwealth’s evidence including the defendant’s statements, on the one hand, and the testimony of the defense witnesses, especially Roberto, on the other. A jury, making comparisons and considering the whole picture, very reasonably could accept the prosecution’s version of the homicide and reject the attempted exculpatory
4. Other contentions. The defendant assails the proceedings at trial but the attack is rather indiscriminate and mostly unsupported by specific objections or exceptions on the record.
First is the complaint that the prosecutor appealed in his questioning of witnesses and closing argument to any latent bias the jurors may have had against Puerto Ricans. During the early stages of the proceeding, the defense objected to any reference to the fact that a given witness or group was Puerto Rican; but in a case with a background of racial or ethnic strife any such attempted denaturing of the evidence would simply falsify the situation (compare
Commonwealth
v.
Johnson,
In his turn the judge is criticized for admitting testimony about too many of the events of May 10-11 preceding the homicide. This grievance — notably weak when it comes to particularizing what should have been excluded —overlooks the breadth of discretion allowed a judge in admitting penumbral evidence especially where motive and credibility of witnesses are in issue. See
Commonwealth
v.
Harris, ante
201, 206-207 (1978);
Commonwealth
v.
Durkin,
We discern no material error in the judge’s final charge to the jury.
25
The judge is attacked for failing to follow the
We are asked to reverse the judgments because — the argument goes — it appears on the face of the record, without more, that the defendant’s representation below by appointed counsel fell below the constitutional standard
As already intimated, we find no basis in the record for mitigating the punishment or taking other action under G. L. c. 278, § 33E.
Judgments affirmed.
Notes
From the record we can identify particular incidents about 6:30 p.m. and 10 p.m. preceding the fatal encounter.
The defendant was sentenced to life imprisonment at the Massachusetts Correctional Institution at Walpole for the murder and to imprisonment for one year in a house of correction for the unlawful possession; the indictment for discharge of the weapon was (without objection) placed on file.
Inspector Gickas explained that by appearances the defendant was the most amenable of the three to conversation or inquiry.
Gickas testified that he did not perceive the defendant had been drinking.
It will be understood that speech by the defendant or the police passed through the interpreter.
That the victim was dead was not communicated to Gickas until he and the defendant and others had left the station and were engaged in the search for the defendant’s gun as later described.
According to the testimony at voir dire, it was Saab who spoke as the defendant entered. At trial, Saab said he was not the one who spoke, but it is clear in any event that the defendant was recognized by Saab, Batstone, and Stephan Murphy present in the guard room and that the fact was communicated. (As to how each had observed the person they identified as the defendant, see below.)
The interpreter however did not recall that an assault charge was mentioned.
There was a mixup of interpretation here, with the interpreter saying that such a test already had been made, but the interpreter apparently was instructed to correct the statement.
About this time the defendant commenced saying that he wanted to go home. The judge remarked that this "was expressed in a manner that indicated that he wanted to get it over with quickly and not that he wished to avoid any further interrogation.”
On the return to the guard room, the defendant was told that he was entitled to use the telephone. He did not then attempt a call as he thought the number he had in mind would not answer. He signed a telephone rights form. Later that morning, after making and signing his statement, the defendant said he wanted to call a person named Curet in Roxbury. The number being unlisted, Gickas spoke with a telephone supervisor who called the number (which she did not disclose) and left a message to phone the police station. But no call was received there. In this court — although not below — the defendant objects to the failure to provide earlier access to the telephone, evidently referring to G. L. c. 276, § 33A. The statutory duty, however, arises only from the time of "custody” or "arrest,” and here this coincided approximately with the defendant’s incriminating statements. It would be hard to say in the present case that "unfavorable evidence [was] gained as a result of denying a defendant the right to use a telephone,” and that the evidence ought, accordingly, to be suppressed (see
Commonwealth
v.
Jones,
It is fairly clear that the defendant meant 81 Chippewa Street which was actually the home of Juana Curet, Roberto’s mother.
We are content to address ourselves to this belated argument which in all events would call for attention in our general review of the case pursuant to G. L. c. 278, § 33E (see below).
The interpreter in fact stated at voir dire that he informed the defendant he was at the station only as a witness and that the defendant understood this.
Gickas testified at voir dire that he usually gave Miranda warnings to witnesses who had difficulty with the English language (and
At trial the interpreter was not clear whether the defendant’s story of shooting in the air on his walk back from Orlando Caret’s house was recounted in the hallway conversation after the identification, as well as in the defendant’s written statement.
A few minutes later Lowe went to the locus on Shaughnessy where she saw the victim prostrate and also saw Saab,
Saab, who had a criminal record, was incarcerated at the Billerica house of correction for an independent offense while the defendant
No objection was taken to the judge’s charge; and on this appeal the defendant appears not to question that the instructions defining the offenses were apposite (as well as substantively correct) if the homicide could be brought home to the defendant on the facts.
At a later point in his testimony, Roberto refused to say he did this, and claimed a privilege as to the question whether he had a gun.
Separate counsel was assigned by the judge to advise Roberto with regard to his testimony.
But this testimony appears to put the defendant at the front of the house in sight of these witnesses at the time, whereas the defendant’s. written statement puts him upstairs in the bathroom; and the testimony is also inconsistent with the defendant’s written statement as to what occurred when he reached the victim’s body.
The reference is to the witness Pedrosa, see note 18, supra.
There is no more merit in the criticism of the prosecutor for referring to statements given to the police by the witnesses Lowe and Saab.
Although, as noted, the judge’s instructions were not objected to, the defendant now criticizes the remarks on a defendant’s right of appeal, cf.
Commonwealth
v.
Walker,
See
Commonwealth
v.
Johnston,