COMMONWEALTH VS. MARIO CRUZADO.
SJC-11670
Supreme Judicial Court of Massachusetts
August 10, 2018
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Suffolk. May 11, 2018. - August 10, 2018.
Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
Homicide. Evidence, Videotape, Admissions and confessions, Inflammatory evidence, Motive, Hearsay, Cross-examination. Practice, Criminal, Capital case, Admissions and confessions, Hearsay, Assistance of counsel. Constitutional Law, Assistance of counsel, Search and seizure, Probable cause. Search and Seizure, Probable cause, Exigent circumstances.
Indictment found and returned in the Superior Court Department on June 24, 2011.
The case was tried before Linda E. Giles, J., and a motion for a new trial, filed on July 1, 2016, was considered by her.
Ruth Greenberg for the defendant.
Colby M. Tilley, Assistant District Attorney, for the Commonwealth.
Background. We summarize the facts the jury could have found, reserving certain details for discussions of the issues.
On the day before Thanksgiving in 2010, the victim‘s boy friend, Jaime Hernandez, encountered the defendant, a former acquaintance, and brought him to the victim‘s apartment in Chelsea. The three spent time drinking; later that morning, Hernandez left the defendant at a bus stop. When Hernandez returned to the victim‘s apartment, he argued with the victim over the whereabouts of the victim‘s cellular telephone (cell phone). As a result, Hernandez left the apartment and did not return. Two days later, the victim‘s body was discovered. An autopsy revealed that the cause of death was strangulation and blunt force trauma to his head.
Eleven days later, Hernandez reported to police that he had twice encountered the defendant, and that each time the defendant had made incriminating statements about the victim‘s death. During the first encounter, Hernandez reported that when Hernandez refused to give the defendant a cigarette, the defendant threatened to choke Hernandez like he had choked the victim. The second incident occurred the next day, when Hernandez overheard the defendant, who was in an apartment building speaking on a cell phone. In a blend of Spanish and English, the defendant used the word “belt” and “mentioned ha[ving] his arm around somebody‘s neck.”
Hilda Matiaz, the defendant‘s former girl friend, told investigators that the defendant telephoned her and told her the following. The defendant visited an African-American man‘s apartment in Chelsea. The defendant showered, fell asleep, and woke to the man touching the defendant‘s testicles. The defendant fought the
Discussion. The defendant contends that several errors require reversal. First, he challenges the trial judge‘s admission of portions of a video recording of an interview between police and the defendant. Second, he claims it was error for the judge to allow Hernandez to testify regarding the argument that Hernandez had with the victim. Third, he contends that he was improperly precluded from questioning Matiaz about whether she was a drug dealer. Fourth, he appeals from the denial of his motion for a new trial on the ground that his counsel was constitutionally ineffective for failing to file a motion to suppress. Finally, he asks this court to reverse his conviction or reduce his verdict pursuant to
1. Defendant‘s recorded police interview. The defendant argues that portions of a recorded police interview were admitted in error. In portions of the video recording played for the jury, State police troopers asked the defendant whether he knew the victim. When asked whether the defendant knew the victim by either of his nicknames, the defendant responded, “No.” Later, after the police showed a photograph of the victim to the defendant, the defendant and the troopers had the following exchange:
Q.: “I‘m going to show you a picture of a guy. See if you‘ve ever seen this guy before.”
A.: “Who‘s that?”
Q.: “I‘m asking you. Isn‘t this -- I‘m asking you. Have you ever seen this guy before? Yes or no?”
A.: “Who the fuck is that? Just a guy?”
Q.: “No, listen to me. Listen to me. Have you ever seen this guy before? Yes or no?”
A.: “He looks like a nigger to me.”
Q.: “Have you ever seen this guy before?”
A.: “He looks like a nigger to me.”
Q.: “Have you ever seen this guy right here before?”
A.: “He looks like a nigger to me. No. He‘s black.” Q.: “No. It‘s a yes or no question.”
A.: “He‘s black.”
. . .
Q.: “Yes or no?”
A.: “Where the fuck I‘ve ever seen him? I don‘t know that mother fucker.”
Although an opposing party‘s statements are generally admissible against him or her, see Commonwealth v. Spencer, 465 Mass. 32, 46 (2013); Mass. G. Evid. § 801(d)(2)(A) (2018), the defendant contends that admission of these portions of the videotaped interview was error. We disagree.
a. Defendant‘s denials. “It is well established . . . that if the extrajudicial statement by a criminal defendant is an unequivocal denial of an accusation, it, and the accusation it denies, are inadmissible.” Spencer, 465 Mass. at 46. The defendant argues that, for this reason, portions of the video recording in which he denied knowing the victim were inadmissible.
However, the questions regarding the defendant‘s familiarity with the victim were not accusations of guilt; that is, the question whether the defendant knew the victim was not directly tied to the defendant‘s culpability. Compare Commonwealth v. Womack, 457 Mass. 268, 272 (2010) (defendant‘s responses to assertions that defendant committed crime improperly admitted at trial). Because the questions investigators posed regarding whether he recognized or knew the victim did not accuse him of criminal activity, the defendant‘s statements denying that he knew the victim were properly admitted.
b. Evidence of racial animus. The defendant also challenges the admission of portions of the interview in which he refers to the victim as “a nigger,” arguing that the reference was irrelevant and unduly prejudicial. Again, we discern no error.
Although the prosecution is not permitted to introduce evidence of a defendant‘s bad character to show his or her “propensity to commit the crime charged, . . . such evidence may be admissible if relevant for some other purpose,” including motive. Commonwealth v. Howard, 469 Mass. 721, 738 (2014), quoting Commonwealth v. Helfant, 398 Mass. 214, 224 (1986).
To mitigate the prejudicial effect of the racial slur, moreover, the judge conducted an individual voir dire of potential jurors to eliminate potential bias.1 See Commonwealth v. Alleyne, 474 Mass. 771, 780 (2016) (discussing use of voir dire to mitigate prejudice); Commonwealth v. De La Cruz, 405 Mass. 269, 274 (1989) (“when requested, we encourage individual voir dire as to possible juror prejudice based on ethnic considerations“). Although the judge did not provide a limiting instruction, the defendant did not request one. “[T]here is no
requirement that the judge give limiting instructions sua sponte.” Commonwealth v. Sullivan, 436 Mass. 799, 809 (2002). “Nor does the lack of a limiting instruction necessarily create a substantial likelihood of a miscarriage of justice.” Id. See Bishop, 461 Mass. at 596-597 (no abuse of discretion despite lack of limiting instruction on use of word “nigger“).2,3
An out-of-court statement not offered for its truth is not hearsay. See Commonwealth v. Jenkins, 458 Mass. 791, 793 (2011); Commonwealth v. Silanskas, 433 Mass. 678, 693 (2001). Hernandez‘s testimony about the argument was not offered to prove that the defendant stole the victim‘s cell phone but, rather, to show that Hernandez and the victim argued, that Hernandez subsequently left, and why he did not return. See Commonwealth v. Perkins, 450 Mass. 834, 844 (2008). See also Commonwealth v. Keown, 478 Mass. 232, 246 (2017), cert. denied, 138 S. Ct. 1038 (2018); Commonwealth v. Brown, 474 Mass. 576, 587 (2016). To ensure that the jury did not use Hernandez‘s statements to prove the truth of what they asserted, the judge instructed the jury on the matter. See Commonwealth v. Santana, 477 Mass. 610, 622 (2017). She told the jury that the Commonwealth was not alleging that the defendant stole the cell phone in question, and that they should not consider it for that purpose. There was no error. See id.
3. Matiaz‘s cross-examination. Although the defendant claimed that he did not know the victim and that he had never been to the victim‘s home, the Commonwealth presented evidence that, on November 24, 2010, five calls were made from the victim‘s landline telephone to Matiaz, who was known to the defendant but not to the victim.4 In an attempt to advance the
theory that it was in fact the victim who called Matiaz because he was seeking illegal drugs, defense counsel sought to question Matiaz regarding whether she was a drug dealer. The trial judge disallowed that line of questioning. The defendant claims on appeal that he was improperly precluded from advancing a viable
A defendant has a right to cross-examine witnesses who testify against him or her, but that right has limits. Commonwealth v. Johnson, 431 Mass. 535, 540 (2000). Those limits include the requirement that the questions have a legitimate basis in evidence. Id. See
4. Ineffective assistance of counsel. Thirteen days after the killing, Hernandez informed police of incriminating statements that the defendant made while speaking to a person later identified as Matiaz. Hernandez directed police to a nearby apartment building, where they found the defendant asleep on a landing; a cell phone was on the floor approximately one foot away from him. During questioning at the station, the defendant claimed that a “crack head” had given the cell phone to him to use a day prior, but that he did not know the owner‘s name or the telephone number. When confronted with the cell phone, although he twice claimed it was not his, he also said that the “dude” left it, responding “no” when police asked whether the defendant was supposed to return the cell phone. Ten days later, police sought and received a warrant to search the cell phone, which led police to contact Matiaz.
The defendant now claims that his trial counsel was ineffective
First, we note that, although the cell phone did not belong to the defendant, he had a possessory interest in it; thus, he would have had standing to contest its seizure.7 See Commonwealth v. Fulgiam, 477 Mass. 20, 35-36, cert. denied, 138 S. Ct. 330 (2017) (possessory interest established standing to
challenge search of cell phone even though defendant did not own cell phone searched). Indeed, a critical part of the Commonwealth‘s theory of the case was that the cell phone was the defendant‘s. See id. at 36. However, although the defendant had standing to challenge the seizure of the cell phone, any such challenge would have failed, as police had probable cause to seize the cell phone and exigent circumstances existed to do so without a warrant. See Commonwealth v. White, 475 Mass. 583, 588 (2016).
When the police encountered the defendant sleeping in the stairwell with the cell phone on the floor near his head, they had information that the defendant and victim had been together on the day of the murder, and also that Hernandez had recently overheard the defendant confessing to the murder to an unidentified person on a cell phone. This provided ample probable cause to believe that the cell phone located near the defendant would contain evidence of the crime. See Commonwealth v. Kaupp, 453 Mass. 102, 105-106 (2009).
Although police are permitted to hold a seized item for “the relatively short period of time needed . . . to obtain a search warrant,” they must “release the item if a warrant is not obtained within that period.” White, 475 Mass. at 593, quoting Gentile, 437 Mass. at 573. We have said that there is no bright-line rule that demarcates when a delay is unreasonable. White, supra. Instead, we analyze each case by its own facts, “balanc[ing] the nature and quality of the intrusion on the individual‘s [interests under the Fourth Amendment to the United States Constitution] against the importance of the government interests alleged to justify the intrusion.” Id. at 593-594, quoting United States v. Place, 462 U.S. 696, 703 (1983). Here, the defendant‘s minimal possessory interest was far outweighed by the government‘s interest in obtaining evidence regarding a recent murder.9 Although the defendant claimed to be using the cell phone, he admitted that he had only had it for a day. Moreover, he was unaware of the identity of its actual owner, or even of its number, and he repeatedly told police that the cell phone was not his. Critically, police likely would not have been
The Commonwealth‘s interest in the cell phone, by contrast, was strong: police had probable cause to believe that evidence critical to a recent murder was present on the cell phone, as discussed supra. There can be no doubt that there is a “strong government interest in solving crimes and bringing offenders to justice.” United States v. Hensley, 469 U.S. 221, 229 (1985). This interest is particularly strong “in the context of felonies or crimes involving a threat to public safety,” such as murder. Id. Judged against the defendant‘s minimal possessory interest, the governmental interests justified a ten-day delay. See Kaupp, 453 Mass. at 106-107 (nine-day delay reasonable in investigation of child pornography). A motion to suppress the cell phone and its contents would have been unavailing; thus, the defendant‘s ineffective assistance claim fails.
5. Review under G. L. c. 278, § 33E. The defendant asks us to exercise our extraordinary power to set aside or reduce his verdict under
trace.” This is not a compelling reason to grant relief under § 33E. Defense counsel vigorously cross-examined witnesses regarding the lack of physical evidence, and focused on it in closing argument. The Commonwealth, by contrast, presented testimonial and documentary
Judgment affirmed.
Order denying motion for a new trial affirmed.