A Superior Court jury convicted the defendant, Johnny Diaz, of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty. Represented by new counsel, the defendant appeals from his conviction and from the denial of his motion for a new trial. He claims that his statements during an audiotaped police interview were improperly admitted because his waiver of Miranda rights was not valid and because his replies to certain questions constituted a denial; the admission of questions in the police interview referring to unnamed “people” who identified the defendant at the scene violated his confrontation rights; the judge should not have admitted evidence of prior bad acts; the judge committed prejudicial error by failing to instruct the jury on the use of excessive force in self-defense; and the defendant was denied the effective assistance of counsel. He also maintains that the judge impermissibly denied his motion for a new trial without holding an evidentiary hearing. Finally, the defendant requests that we exercise our extraordinary power pursuant to G. L. c. 278, § 33E, to reduce the verdict or order a new trial. We affirm the conviction and the order denying the motion for a new trial, and we decline to exercise our power to alter the verdict.
As they drove on Merrimack Street in Lowell, a white car came up beside them and the driver, the victim, asked the defendant who owned the gold car. The defendant said that it was his cousin’s car. The victim responded that his cousin’s car had been stolen and that the defendant’s car looked just like the stolen one. The victim asked to see the registration for the car. The defendant produced some documents and showed them to the victim. The victim responded by calling the defendant a thief and threatening to call the police. While the defendant was still in his car, the victim punched the defendant in the mouth. At some point thereafter, the defendant got out of the car.
Three people in a Jeep Cherokee vehicle came upon the scene. At least two of the Jeep’s occupants knew the defendant. They sought to calm the victim down and suggested that he call the police if he thought the car was stolen.
The defendant walked to the Mitsubishi he had been driving, went into the front passenger seat, put his hand under the seat, and pulled out a gun. He returned to the victim, aimed the gun at him, and, touching his bleeding mouth with one hand, said, “How about now? How about now?” The men from the Jeep yelled, “No, Johnny, don’t do that. No, no, don’t do that,” but the defendant fired and the victim fell to the ground, moaning in pain. The defendant said something to the effect of “Come on, come on, hit me again,” walked “really close” to the victim, and shot him twice more in the chest. Then the defendant ran off.
Jose Alcantara retrieved the other gun from the car, threw it
Several other witnesses corroborated some or all of the above facts. Edwin Alcantaro had been present when the defendant came to his house to obtain the guns from Jose. Edwin was also in the car during the initial confrontation between the defendant and the victim. He ran home after the victim punched the defendant. Later he saw the defendant arrive at his apartment with a split lip. Both the Alcantaro brothers identified the defendant in court; each testified pursuant to an agreement with the Commonwealth that he would not be charged with any offenses relating to this incident.
Two of the men in the Jeep Cherokee testified. One of them had lived in the same building as the defendant; the defendant visited him on Saturdays and referred to him as “uncle” and to his wife as “aunt.” These men essentially confirmed portions of Jose’s testimony, although they had driven from the scene after the defendant shot the victim the first time. Both men identified the defendant in court; one of them had earlier selected his picture from a photographic array as well. Each of the men recalled that the defendant was wearing a blue shirt.
A person who was driving in the area at the time of the incident saw people arguing and someone on the ground. He observed a person wearing a blue shirt walk to the man on the ground, fire two shots and then run away. The shooter had blood on his hands and his shirt. He identified the shooter from a photographic array as the defendant. Two other individuals who were in the area observed some or all of the above events, but were not asked to identify the defendant as the shooter. One of them remembered that the man firing the gun was wearing a blue shirt.
The day after the incident, the defendant telephoned the home of one of the men who had been in the Jeep Cherokee and asked if anyone had asked about him, either “people or the
On May 15, 2001, Jose Alcantara took a Lowell police detective to 77 Austin Street to the second-floor landing. Inside a baby carriage the detective found a handgun whose handle was wrapped in duct tape. The gun was identified as a .32 caliber Colt semiautomatic pistol. A dark blue shirt with blood on it had been placed over the baby carriage.
Testing of the Colt pistol revealed human blood stains on the trigger guard which contained deoxyribonucleic acid (DNA) belonging to the defendant. He was also the source of the DNA found on a piece of bloody fabric cut from the front passenger seat of the Mitsubishi and the blue shirt that had been located on the baby carriage with the gun. Examination of shell casings found at the scene indicated that they were fired from the Colt weapon that had been stored in the baby carriage and that the bullets recovered from the victim’s body came from the same weapon. The first two gunshot wounds were each independently fatal.
The defense was that Jose Alcantara was the shooter. To this end, the defendant questioned the ability of witnesses to see the shooter and emphasized the facts that the gun and the blue shirt were found in the hall of an apartment where Jose’s friend lived, that Jose could not remember what he was wearing the day of the killing, and that Jose and his brother Edwin fled to Connecticut after the shooting.
2. Admissibility of defendant’s audiotaped interview. The defendant claims that the judge erred by denying his motion in limine
The judge held a hearing on the motion at the start of the trial and made his findings immediately thereafter. Two witnesses testified, Detective Hultgren and Officer William Bernard of the Lowell police department. The judge also listened to the recording of the police interview. We summarize the judge’s findings. He credited the police testimony and found that, after the defendant was arrested for the murder of Luis Ayala on May 14, 2001, he was brought to an interview room at about 2 a.m. where Hultgren and a State trooper were present. Hultgren read the defendant the Miranda warnings in English. The defendant responded in English that he understood the warnings but would prefer the presence of a Spanish-speaking officer because he did not read English well and might not understand the police. Bernard, a Spanish-speaking officer, was contacted. While awaiting his arrival, the officers and the defendant engaged in small talk about sports and “matters unrelated to the murder.” The conversation was friendly, in a “comfortable” room. The defendant was seated and not handcuffed. There was no “brandishing” of weapons, and the defendant was given coffee.
When Bernard arrived, he read the defendant the Miranda warnings in Spanish from a card which the judge found contained an accurate rendition of the warnings in Spanish. After each warning, the defendant responded in Spanish that he understood the right. The defendant signed a “so-called Spanish Miranda card” and his signature was witnessed by the other officers present.
The defendant agreed to continue speaking with the officers, and the ensuing portion of the interview (approximately thirty minutes) was tape recorded. During that time, the defendant never expressed interest in speaking to a lawyer; he did not indicate discomfort or distress, nor was he subjected to any threats by the police. He appeared to be alert and sober. The defendant said that he had consumed some beer the night before, but that he was not drunk at the time of the interview. There was no evidence that he had been drinking immediately preceding his arrest.
Most of the questions were put to the defendant in English. The defendant answered most of these questions in English. Sometimes the defendant expressed difficulty answering a ques
There was no indication that the defendant was suffering from a mental disease or defect, although he became “somewhat agitated or frustrated” when the police informed him that he had been identified by witnesses as the person who had shot Ayala. But the judge found that there was “no evidence that his will was overborne or that his statements were not the product of a rational intellect.” Accordingly, the judge found beyond a reasonable doubt that the defendant understood and waived his Miranda rights and that his statements were voluntary and the product of a rational mind.
On the issue of the admissibility of the defendant’s denial of guilt, the challenged statements were ones in which the defendant denied being in Lowell “within the past month and a half,” being at the scene of the shooting, and driving a car on the night in question. The judge ruled that these statements did not constitute a denial, but rather were admissible as evidence of consciousness of guilt. Thus, the judge denied the motion in limine on both grounds and permitted introduction of the statements.
In reviewing a ruling on a motion to suppress evidence, see note 3, supra, we accept the judge’s subsidiary findings of fact absent clear error. Commonwealth v. Yesilciman,
A valid Miranda waiver is one that is made knowingly, intelligently, and, in all respects, voluntarily. The Commonwealth bears a heavy burden to make this showing. Miranda v. Arizona,
First, the judge’s findings that the defendant understood and waived his Miranda rights and that his statements were voluntary and the product of a rational intellect are supported by the evidence. The defendant received his Miranda warnings in English and then in Spanish. He signed a Miranda card that contained the warnings in Spanish. The defendant’s answers during the interview indicated he understood the questions. Nothing about the situation suggested discomfort, coercion or distress. The defendant appeared sober and there was no evidence he was suffering from any mental disease or defect.
The defendant’s second argument regarding his taped interview carries more force. He contends that the tape should not have been admitted because many of the statements contained therein constituted denials. For example, the defendant said several times that he did not shoot anybody, that he was not in Lowell on the date of the incident, and that he had not been driving a Mitsubishi. In addition, one of the last remarks by the police during the interview was, “You understand why you’re here? You understand you’re under arrest and we understand that you are saying you weren’t there.” These statements of denial (and their repetition by the police) should not have been admitted. Our “long-standing rule [is] that if a defendant is charged with a crime and unequivocally denies it, that denial is not admissible in evidence.” Commonwealth v. Nawn, supra at 4, and cases cited.
The Commonwealth contends that because the statements were false, they are admissible as evidence of consciousness of guilt. If such were the case, the rule prohibiting evidence of statements of denial would be eviscerated, because every denial would then become admissible as evidence of consciousness of guilt. The Commonwealth cites Commonwealth v. Lavalley, 410
We consider whether the error in admitting the denial evidence requires reversal of the conviction. The issue was preserved. It was the subject of a motion in limine on this ground and defense counsel objected when the tape was introduced. The error was of constitutional dimension. We cannot “distinguish between defendants who remain silent after being advised of their Miranda rights and those who deny the accusation after being so advised.” Commonwealth v. Nawn, supra at 5. Where the error was of constitutional dimension and the issue was preserved, we must determine whether the error was harmless beyond a reasonable doubt. In determining whether an error is harmless we weigh the prejudicial effect of the improper evidence by considering such factors as “(1) the relationship between the evidence and the premise of the defense; (2) who introduced the issue at trial; (3) the weight or quantum of evidence of guilt; (4) the frequency of the reference; and (5) the availability or effect of curative instructions.” Commonwealth v. Waite,
We address each of the factors. The premise of the defense was misidentification; evidence of the defendant’s denial did not harm the defendant’s case in this regard. The Commonwealth introduced the evidence, but the case against the defendant was overwhelming. There were several eyewitnesses to the crime. There was no question that the victim was shot to death. The only issue was the identity of the killer. Four people identified the defendant as the shooter. Although the defendant challenged the credibility of one, Jose Alcantaro (who could have been a suspect and who was testifying pursuant to an agreement with the
The denials were mentioned in the Commonwealth’s opening, contained in the taped interview, repeated again when Detective Hultgren testified, and' mentioned in the closing argument. The judge instructed that the denials could be considered only as evidence of consciousness of guilt. However, a denial of a charge in circumstances such as these is not evidence of consciousness of guilt. Thus, the instruction given was not adequate to cure the prejudice to the defendant, and may in fact have aggravated it.
We are mindful that “we should apply the principle of harmless error with restraint,” Commonwealth v. Gilday,
As mentioned, the defendant was hit in his mouth by the victim at the start of the incident. The defendant makes a separate argument that his statement to the police that he cut his Up playing basketball should not have been admitted because it was made while he was talking with the detectives awaiting the arrival of Bernard, before he received the Miranda warnings in Spanish. This claim was not raised below and has been waived. We consider
3. Confrontation rights. The defendant next contends that the taped interview contained improper references by the police to the fact that “people” had identified him as the shooter, and that this violated his right to confrontation under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights.
The defendant was tried almost six months before the decision in Crawford v. Washington, supra, in which the United States Supreme Court announced a “new rule” concerning the confrontation clause. See Whorton v. Bockting,
The Supreme Court further refined the Crawford decision in Davis v. Washington,
The statements at issue were plainly hearsay. Commonwealth v. DelValle,
The Commonwealth contends that the statements are not hearsay because they were not offered for their tmth, but “to show the defendant’s response.” Regardless whether such might have
The defendant did not object on the basis of hearsay during the motion in limine or at trial.
There remains the question whether the evidence violates the confrontation clause and the precepts of the Crawford decision. Because Crawford declared a new constitutional rule in criminal cases, it must be applied to cases pending on direct review. See Griffith v. Kentucky, supra. Since the alleged error was of constitutional dimension, we ask whether any error was harmless beyond a reasonable doubt. Commonwealth v. Rosario,
4. Evidence of prior “bad acts” The defendant argues that the judge improperly admitted evidence of the defendant’s prior “bad acts.” Specifically, the defendant alludes to evidence from several witnesses that the car the defendant was driving was stolen. These witnesses repeated statements of the victim to this effect. Defense counsel objected to the admission of most, but not all, of these statements on the ground that they constituted hearsay. Whether we consider the claim as preserved makes no difference; there was no error.
The statements from the victim about the car being stolen were not hearsay because they were not offered for their truth. They were admitted merely for the fact that they were said, and the jury were instructed accordingly. The statements were the reason for the confrontation; the victim’s act of punching the defendant would have been inexplicable without the evidence that the victim had accused the defendant of stealing the car. And the shooting would have been inexplicable but for the fact that the victim accused the defendant of being a thief and physically attacked him.
5. Excessive force in self-defense. The judge instructed on self-defense. The defendant maintains that the judge should have instructed as well on the use of excessive force in self-defense. He claims that the instruction was warranted because the victim initially punched the defendant, the defendant was confronted by a group of people, and the defendant used no more force than was reasonably necessary. The judge did not instruct on excessive force in self-defense, and no objection was lodged at the conclusion of the charge. There was no error.
At the outset, no instruction on the subject was warranted. When deadly force is used, a self-defense instruction must be given “only if the evidence, viewed in the light most favorable to the defendant, permits at least a reasonable doubt that the defendant reasonably and actually believed that he was in ‘imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force.’ ” Commonwealth v. Pike,
Because the defendant has been convicted of murder in the first degree, we consider his claim of ineffectiveness of counsel to determine whether there exists a substantial likelihood of a miscarriage of justice, as required under G. L. c. 278, § 33E, which is more favorable to a defendant than the constitutional standard for determining the ineffectiveness of counsel. Commonwealth v. Wright,
Citing Crawford v. Washington, supra, the defendant claims that counsel was ineffective for not objecting to statements by the police that “people” had identified the defendant as involved in the shooting. The defendant claims also that the statements were not admissible because they violated the hearsay rule. We have discussed these assertions. See part 3, supra. Because those who identified the defendant testified at trial, police mention of such a fact could not have had an impact. Accordingly, any failing by defense counsel was not “likely to have influenced the jury’s conclusion.” Commonwealth v. MacKenzie, supra at 517, quoting Commonwealth v. Wright, supra at 682.
The defendant also argues ineffective assistance because his attorney did not seek to suppress the taped interview on the ground that it was obtained in violation of his “telephone rights” as provided in G. L. c. 276, § 33A. That statute requires that a person held in custody be permitted to use the telephone and be informed of this right “forthwith” upon his arrival at the station. Only statements obtained as a result of the intentional deprivation of a defendant’s right to make a telephone call must be suppressed. Commonwealth v. Alicea,
This issue was raised by the defendant in his motion for a new trial. The defendant makes no claim that he was not advised of this right in English, but only that he was not provided the right in Spanish. The judge ruled that counsel was not ineffective for failing to argue for suppression of the taped interview on this ground for several reasons. First, the judge did not credit the defendant’s allegations on this subject made in an affidavit that accompanied the motion for a new trial; moreover the judge
The judge’s decision was not an abuse of discretion. The judge did not credit the defendant’s affidavit that he asked in Spanish to use the telephone but was not permitted to do so and that he was directed to sign a paper written in English that he could not understand. There was no error in this decision. The defendant exhibited no signs of reluctance in his ensuing interactions with the police, or in the taped interview that occurred shortly after the telephone advisory. In addition, the defendant did not raise these claims until nearly three years after his conviction. The judge “did not have to accept [the allegations in the defendant’s affidavit] as true even though they were undisputed.” Commonwealth v. De Christoforo,
The defendant’s final ineffective assistance claim is that he was entitled to a jury instruction on the possibility of an honest but mistaken identification, see Commonwealth v. Pressley,
A “good faith error” instruction is not required when “the parties are so well known to each other . . . that under sufficient lighting and with appropriate physical proximity, the identification by the [witness] is either true or the [witness] is lying.” Id. at 619. Here, three of the four identifying witnesses knew the defendant; two of them knew him well. It was daylight, and the individuals were all in close proximity during the incident. This case is unlike the Pressley case in which the victim had repudiated her earlier identification and there was “no evidence of the defendant’s complicity” other than the victim’s identifications. Id. at 620. Because such an instruction was not required here, failure to request one cannot qualify as ineffective assistance of counsel.
7. Evidentiary hearing on motion for new trial. The defendant’s final claim is that the judge erred by not holding an evidentiary hearing on his motion for a new trial. Whether to hold a hearing on a motion for a new trial is within the judge’s discretion, and the judge may rule on the motion for new trial without a hearing if “no substantial issue is raised by the motion or affidavits.” Commonwealth v. Wallis,
The judge’s comprehensive and detailed statements of the facts and of the reasons for denying the motion for a new trial indicate that he was thoroughly conversant with the issues and with the relevant details. He considered the affidavits submitted and deemed that there had not been a substantial showing meriting an eviden-tiary hearing. See Commonwealth v. Stewart,
8. Review pursuant to G. L. c. 278, § 33E. We have con
Judgment affirmed.
Order denying motion for a new trial affirmed.
Notes
One witness, a friend of the defendant, testified that he had seen the defendant in the gold Mitsubishi earlier and that the defendant had admitted that the car was stolen.
A gun was later recovered by the police from a baby carriage on the second-floor hallway of 77 Austin Street where a friend of Jose Alcantaro lived. See infra. A bloody blue shirt was draped over the baby carriage.
The record does not indicate why this issue was raised by a motion in limine rather than a motion to suppress. We treat the motion as if it were a motion to suppress.
The “cat out of the bag” theory, see Commonwealth v. Mahnke,
The Sixth Amendment to the United States Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” The right to confrontation is a “bedrock procedural guarantee [that] applies to both federal and state prosecutions.” Crawford v. Washington,
The right of a criminal defendant to confront witnesses who testify against him is also protected by art. 12 of the Massachusetts Declaration of Rights, which provides that in a criminal trial “every subject shall have a right to produce all proofs that may be favorable to him [and] to meet the witnesses against him face to face.” “Although, in some circumstances, art. 12 may provide a criminal defendant more protection than its Federal counterpart, see Commonwealth v. Amirault,
“ [Statements made in response to questioning by law enforcement agents are per se testimonial, except where the questioning is meant to secure a volatile scene or to establish the need for or provide medical care,” Commonwealth v. Gonsalves,
He did assert the objection in his motion for a new trial.
Another witness testified that the defendant had said, prior to the shooting, that the car was stolen. Such a statement, of course, was admissible as an admission by the defendant. See Commonwealth v. Rankins,
The defendant claims also that the testimony that the defendant said to the victim, while holding a gun, “Come and punch me now” or “Come and get me now,” was inadmissible as a prior bad act. There is nothing “prior” about this statement. The words were part of the entire shooting incident.
Defense counsel did file a motion in limine for a limiting instruction regarding any involvement by the defendant in drug dealing. The motion was allowed, but no limiting instruction was requested or given at the time of admission of the defendant’s statement that he thought the police had arrested him because of drugs.
The fact that the questions were asked during a police interview in which the defendant voluntarily participated does not render the responses admissible at trial.