On Mаy 19, 2009, a jury convicted the defendant, Jose Delacruz, of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty, and of possession of a firearm without a license, in violation of G. L. c. 269, § 10 (a). Represented by new counsel on appeal, the defendant argues (1) that he was deprived of his counsel of choice resulting in a violation of the Sixth Amendment to the United States Constitution; (2) error in the denial of his motions to suppress statements; and (3) error in the judge’s instructions to the jury. In addition, the defendant asserts that we should exercise our power pursuant to G. L. c. 278, § 33E, to reduce the murder verdict tо a lesser degree of guilt or to grant him a new trial. We reject the defendant’s claims, affirm the order denying the defendant’s motions to suppress, and affirm the judgments of conviction. We discern no basis to exercise our authority pursuant to G. L. c. 278, § 33E.
1. Background. The jury could have found the following facts. During the early morning hours of February 8, 2007, the defendant walked into a convenience store located in the Grove Hall neighborhood of the Roxbury section of Boston, stayed briefly, and left. A short time later, the defendant returned to the store, entered it, drew a firearm, and shot repeatedly at the victim, Tyrice Brown, who was sitting on an icebox inside the store.
The victim suffered numerous injuries from four separate gunshot wounds. He died as a result of gunshot wounds to his torso with perforations to his lung, liver, intestines, and external iliac artery (a major blood vessel). The medical examiner who perfоrmed the autopsy gave his opinion that, although the victim would have died shortly after sustaining his injuries, he would have experienced “significant” pain and would have had difficulty breathing. The medical examiner recovered two spent projectiles and two bullet fragments during the autopsy.
Witnesses at the convenience store could not identify the shooter, but surveillance cameras inside the store recorded the shooting in its entirety. Sergeant Detective Kevin J. Buckley of the Boston police department’s homicide unit, who was in charge of the investigation, showed the recording to various individuals, including one patrol officer who immediаtely recognized the shooter as the defendant. The officer had known the defendant for approximately ten years, had grown up in a neighborhood near the defendant’s, and knew the defendant and some of his family from attending the same church.
An arrest warrant was obtained, and the defendant eventually was apprehended and arrested in Wilmington, Delaware, on March 27, 2007. After being given Miranda warnings and waiving those rights, as well as his right to a prompt arraignment, the details of which are set forth later in this opinion relative to the defendant’s motions to suppress, the defendant agreed to speak with detectives from Boston who arrived in thе late evening on the day of the defendant’s arrest. Once the defendant was shown a photograph from the surveillance video recording of the shooting, he admitted that he had shot the victim in
The defendant did not testify at trial. His trial counsel elicited during the cross-examination of a detective that the defendant claimed that the person who allegedly had shot him in January had continued thereafter to taunt and threaten him. The defendant’s trial counsel argued that, although the defendant had shot the victim, because the defendant is “cognitively limited,” the shooting was “something less” than murder in the first degree. Defense counsel repeated this point during his closing argument, asserting that the defendant’s mental limitations warranted a verdict of murder in the second degree. In support of this defense, at trial, the defendant offered the testimony of Dr. Charles Drebing, a clinical neuropsychologist. Dr. Drebing testified that he had performed a neuropsychological assessment of the defendant, during which the defendant revealed that he had experienced a “lifelong history of troubles in school and [in] work.” The defendant also reported that he had been in special education classes while in school. Dr. Drebing testified that the results of various tests he had conducted confirmed that the defendant was in the “borderline mentally retarded” to low intelligence range. Dr. Drebing also noted that the defendant exhibited several symptoms of posttraumatic stress disorder, as well as depression. Dr. Drebing acknowledged during cross-examination that he had not been asked by defense counsel to render an opinion concerning whether the defendant was competent. Dr. Drebing did not provide any opinion concerning whether the defendant was legally responsible for his criminal conduct.
2. Deprivation of counsel of choice. The defendant argues that, by holding the parties to a November 18, 2008, order scheduling a trial dаte of May 12, 2009, both a pretrial judge and the trial judge committed “structural constitutional error” violating his right to counsel under the Sixth Amendment to the United States Constitution. Some background is in order.
The defendant was arraigned in May, 2007. Ten months later, on March 27, 2008, a joint motion of the parties was allowed to move the trial date to July 28, 2008. On July 17, 2008, the parties appeared in court and by agreement continued the trial date
On March 3, 2009, counsel for the parties appeared before a pretrial judge. The defendant was not present. Counsel had informed the clerk that they wanted to discuss the issue of a change of defense counsel, but that the issue could be explored only if the trial date were to be moved. The private attorney who sought to be appointed as counsel for the defendant indicated that he could be available the second week of July. An assistant district attorney suggested a November trial date, which the judge rejected because he “need[ed] to put some cases into July.” The judge requested that the parties and the defendant soon return and stated that he would “tentatively” reschedule the trial date for July 13.
On March 10, 2009, the parties appeared again before the same pretrial judge. The defendant was present. His appointed counsel was not present because of a family emergency, but had called and relayed that he stood ready for trial (for May 12). Potential private counsel for the defendant was present and stated that he was “prepared to enter an appearance” but with a “contingency,” namely, he could not do so if the case were to be tried in May. He indicated that he had been contacted but not retained by the defendant’s family in August or September of 2008, and that they had “recontacted” him “a couple of weeks ago” to “secure representation.” Because of a trial the attorney
a. Action of pretrial judge. The defendant states that the pretrial judge who, on March 10, 2009, kept the May 12, 2009, trial date in place prevented him from “exercising his right to be represented by counsel of his choice.” In essence, the defendant challenges the effective denial of a request for a continuance so that he could change counsel. “Whether a motion for continuance should be granted lies within the sound discretion of the judge, whose action will not be disturbed unless there is patent abuse of that discretion, which is to be determined in the circumstances of each case.” Commonwealth v. Pena,
Here, the pretrial judge did not expressly state his reasons for maintaining the set trial date.
b. Action by the trial judge. The trial judge did not abuse his discretion in declining, on the first day of the trial before the jury were sworn, to allow the defendant to discharge his appointed counsel. See Commonwealth v. Jackson,
3. Motions to suppress statements, a. Background and standard of review. Prior to trial, the defendant filed two motions to suppress recorded statements he made to police claiming that
In reviewing a decision on a motion to suppress, “we accept the judge’s subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ ” Commonwealth v. Scott,
Based on evidence identifying the defendant as the shooter shown in the surveillance recordings, Boston police officers obtained a warrant for the defendant’s arrest. After obtaining information that the defendant might be in Wilmington, Delaware, Boston police Officers Joseph King and Stephen Ridge traveled there. With the help of Federal and local officers, the officers were able to apprehend and arrest the defendant at approximately 11:20 a.m. on March, 27, 2007, in Wilmington. After placing the defendant in a police cruiser, Officer King read the defendant the Miranda warnings and showed him a printed set of warnings. Officer King asked the defendant whether he understood the warnings, and the defendant responded that he did.
In the police cruiser, the defendant inquired about the case and asked to speak with “Detective Jack.” Officer King assumed that the defendant was referring to “Detective Jack Callahan” of the
At approximately 10:55 p.m. on March 27, at the New Castle County police department in Delaware, the defendant was interviewed by Detective Jeremiah Benton and then-Detective Latisha Adams of the Boston police homicide unit. The defendant was not handcuffed or otherwise restrained. The defendant agreed to have the interview electronically recorded аnd signed a consent form to that effect.
The defendant stated that he was twenty-one years of age and that his highest level of completed education was the ninth grade. He stated that he had no problems reading and understanding English, but informed the officers that he stuttered. From a preprinted form, Detective Benton read each Miranda warning to the defendant and asked the defendant whether he understood. In response to each warning, the defendant answered “yes” or nodded affirmatively. The form also advised the defendant that he retained the right to stop answering at any time and to speak with a lawyer. The defendant initialed each Miranda warning and signed the bottom of the form indicating that he had read and understood the warnings and wished to make a statement without a lawyer being present.
Detective Benton next read to the defendant the Boston police department’s Rosario waiver form. Detective Benton read each section to the defendant and after each section asked whether he understood. The defendant stated that he understood. Detective Benton then read the provision located at the bottom of the arraignment waiver form that provided: “I waive my right to prompt arraignment voluntarily and wish to speak with the police.” The defendant stated, “I don’t agree with that,” and “I don’t waive to go see the judge and see what’s the evidence against me.”
After this exchange, the defendant told the detectives that he had been shot in January. The defendant claimed to have been in Delaware in February, but the detectives indicated that they had video surveillance footage of the defendant on February 8 in the convenience store where the victim had been shot. Once the detectives showed the defendant a photograph taken from the surveillance footage, the defendant began explaining what had happened and made incriminating statements. In summary, he stated that he fortuitously had come across the victim at the convenience store, recognized the victim as the person who had shot him in January, and went back inside the store to shoot him.
b. Discussion. On appeal, the defendant argues that the motion judge erred in concluding that the Commonwealth proved beyond a reasonable doubt that he had knowingly and intelligently waived his rights prior to providing a statement to police. Specifically, the defendant contends that the motion judge placed insufficient weight on his intellectual limitations and failed to account adequately for the confusion he exhibited during the questioning as to his right to a prompt arraignment. Additionally, the defendant argues that, although the safe harbor rule announced in Rosario, discussed infra, does not apply to out-of-State arrests, Commonwealth v. Morganti,
“Because the defendant was advised of, and waived, his Miranda rights, the issue becomes whether the Commonwealth has proved, by a totality of the circumstances, that the defendant made a voluntary, knowing, and intelligent waiver of his rights, and that his statements were otherwise voluntary.” Commonwealth v. LeBeau,
Contrary to the defendant’s argument, the judge fully took into account his limited intellectual function as it bore on his ability to waive his rights and otherwise make a voluntary statement. In his decision, the judge expressly acknowledged the obligation to use “special care” while evaluating this claim. See Commonwealth v. Cameron,
The defendant maintains that his statements were involuntary because, although the safe harbor rule established in Rosario, supra, is generally inapplicable to out-of-State arrests, Commonwealth v. Morganti,
Although we have recently stated that the safe harbor rule “applies by its terms only to persons arrested in Massachusetts,” Commonwealth v. Morganti, supra, we nevertheless may consider whether the circumstances of a particular interrogation “violated the spirit of the rule.” Id. at 400. We conclude that they did not. The defendant’s statements were elicited only after the defendant executed an informed and voluntary written waiver of his right to be arraigned without unreasonable delay.
4. Jury instructions. In his main charge to the jury, the judge instructed them to consider credible evidence of the defendant’s mental impairment in determining whether the Commonwealth had proved beyond a reasonable doubt that the defendant deliberately premeditated and acted in a cruel or atrocious manner. During deliberations, the jury requested that the judge provide them with the definitions of murder in the first and second degrees and “specifically the definition of premeditation.” They also asked, the following day, for the judge to “[ejxplain extreme atrocity [or] cruelty.” In response to these questions, the judge reinstructed the jury on the elements required for murder cоmmitted by deliberate premeditation and with extreme atrocity or cruelty, and repeated the definitions he earlier had given in his main charge concerning deliberate premeditation and the factors that render a murder in the first degree committed with extreme atrocity or cruelty. The defendant did not object to these instructions. He claims on appeal, however, that a substantial likelihood of a miscarriage of justice resulted because the judge failed to re-instruct the jury on the relevance of his mental impairment to the elements of deliberate premeditation and extreme atrocity or cruelty.
There was no error. The judge adequately instruсted the jury in his main charge on the relevance of mental impairment as it bore on deliberate premeditation and extreme atrocity or cruelty and did so in accordance with our Model Jury Instructions on Homicide 61-62 (1999). See Commonwealth v. Szlachta, ante 37, 48 (2012); Commonwealth v. Mercado,
Because the judge did not commit error, the defendant’s claim of ineffective assistance of trial counsel, based on trial counsel’s failure to object to the judge’s “omission” in the reinstructions on the issue of the relevance of the defendant’s mental impairment, is without merit. See Commonwealth v. Waite,
6. Conclusion. The requests for a continuance and change of counsel were properly denied, as were the motions to suppress. The judgments of conviction are affirmed.
So ordered.
Notes
The victim and his cousin had been at the store for a couple of hours, flirting with an employee who worked there.
It was later determined, after an analysis was conducted by a detective in the Boston police department’s firearms analysis unit, that the two spent projectiles recovered at the autopsy, along with the projectile removed frоm the victim’s stomach area by police, were fired from the same revolver-type firearm, which was not recovered.
There is no indication on the docket at whose request the trial date was continued.
The transcript of the March 3, 2009, proceeding consists of four pages, including the title page.
The defendant mischaracterizes the record and the status of the case, claiming that, at the March 10, 2009, hearing, the pretrial judge “decreed that the case was to be tried two months sooner, in May,” when at that time, and since November 18, 2008, the trial date had been set as May 12, 2009. The May trial date came as no surprise to the defendant.
The transcript of the March 10, 2009, proceeding consists of four pages, including the transcript title page.
The better practice would have been for the pretrial judge to have articulated his reasoning on the record. It appears that some discussion had occurred off the record before the March 10, 2009, hearing, because the focus of that short hearing was maintaining the trial date of May 12 and not inquiring of other tentative dates.
The defendant contends that he was not afforded an opportunity to be heard at the March 10, 2009, hearing and should have been given a hearing at which a thorough inquiry would be made concerning his wish to change counsel. The record belies his first assertion. At the March 10, 2009, hearing, the defendant’s appointed counsel had contacted the court to relay that he was ready for trial, and the defendant’s proposed new counsel set out the defendant’s position to the court. The defendant does not identify what further information he would have liked relayed to the judge. Concerning the defendant’s argument that a thorough inquiry should have been conducted concerning the defendant’s desire to change counsel, a thorough inquiry was not required because the defendant had not advanced a claim of inadеquate representation by appointed counsel but, rather, merely appeared to be exploring the possible option of substituting counsel only if the trial date were to be moved. See Commonwealth v. Moran,
The defendant initially was under the impression that by signing this form waiving his right to a prompt arraignment, he would waive his right to a preliminary hearing in the Delaware court in its entirety.
We have reviewed the video recording of the defendant’s interview. The