In February, 2001, a Superior Court jury convicted the defendant on two indictments charging murder in the first degree on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder. The jury also found the defendant guilty of armed assault with intent to murder, armed robbery, assault and battery by means of a dangerous weapon, armed
The defendant claims that the admission of his oral and written statements to police on January 12 and January 24, 2000, violated his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights, and that the statements should have been suppressed; that the prosecutor’s failure timely to disclose that a key witness had been unable to identify the defendant at voir dire violated his right to due process and mandates a new trial; and that the admission of evidence obtained by Massachusetts police based on a pawn ticket that had been seized by New Jersey police after the defendant’s arrest in that State violated his rights under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights and requires a new trial.
We reject the defendant’s claims, and, after review of the entire record pursuant to our responsibility under G. L. c. 278, § 33E, decline to exercise our power to reduce the defendant’s murder convictions to a lesser degree of guilt or to order a new trial.
Facts. We summarize the facts the jury could have found, reserving some details for discussion in connection with the specific issues raised.
Gregory Cautela, Sr.,
Edrike picked up Gregory Jr. and carried him into the hallway, but could not carry him any further. He asked his friend Louie, who had been waiting to play with him after school and who was in the hallway outside the apartment, to get Louie’s mother, Maritza Mattei. While Mattei was attempting to comfort Gregory Jr. until medical help arrived, Gregory Jr. told her, “My father’s friend shot my father, and he shot my father’s friend, and he hit me in the face with the gun;” Mattei said the friend’s name sounded like “Riv.”
As Gregory Jr. was being transported to a hospital, the boys’ mother, Elizabeth Garcia, telephoned from work; she had tried to reach Gregory Sr., whom she usually spoke with at lunchtime, several times that afternoon, but no one had answered. Edrike asked her to come home right away because Gregory Sr. and Candelario were dead and Gregory Jr. had been injured. He told Garcia that Gregory Jr. said that “Rev” shot him. When Garcia arrived home, she told police that “Rev” was a friend of her husband, and that she had known “Rev” for about five years.
Gregory Jr. suffered multiple wounds to his neck and chest as a result of a single gunshot. On the day after the shooting, a State trooper and a Holyoke police officer spoke with Gregory Jr. at the hospital; he told the officers that “Rev” shot him. The officers spoke with Gregory Jr. again on January 20, 2000, at another hospital where he had been transferred for rehabilitation. He identified a photograph of the defendant as the person who shot him, circled the photograph, and wrote his name on it.
The day after, the shooting, Garcia asked police about a gold chain that she had given Gregory Sr. as a birthday gift and that he wore every day; he had been wearing it when she left for work on the morning of the shooting. The chain was missing from her apartment and had not been returned with Gregory Sr.’s effects. Garcia described its distinctive “Cuban link” style and, on January 20, drew a picture of the chain, which police were unable to locate.
On the afternoon of the shooting, the defendant had planned to meet his sister Angelica Cruz outside a restaurant, and then to go shopping at a local mall; they had agreed to meet at 1:30 p.m., but the defendant was twenty minutes late.
The defendant was unemployed at the time, had been using cocaine extensively in the previous weeks, and owed his drug connection several thousand dollars; because of the outstanding debt, the “connect” was refusing to supply the defendant with any more drugs. A few days before the shooting, the defendant had tried to sell a video game system to one of his friends for $500, saying he needed the money for a lawyer. In late December, the defendant and two acquaintances had seen Gregory Sr., who was believed by a number of his friends and acquaintances to be selling drugs, in his apartment with a large quantity of cash. Gregory Sr. was known generally to have cash readily available.
When Cruz and the defendant returned home, their mother told Cruz that the police had been looking for the defendant, and that he had to leave. Taking only the backpack that he had been carrying throughout the day, the defendant walked to a friend’s house; she declined to allow him to spend the night, but permitted him to telephone for a taxicab. The defendant took the taxicab to the bus station in Springfield, where he took a bus to New York City. His sister Yvette Negron found him sleeping on the couch in her apartment on the morning of January 4. The defendant was wearing a large gold chain. When she told him that a warrant for his arrest had been issued, he said that he “didn’t do it” and wanted to turn himself in to “clear. . . up” the warrant. He left the next day.
On January 5, the defendant arrived at the home of a childhood friend, Daniel Cotto, in Jersey City, where he stayed until his arrest the following week. The two stayed up late, drinking beer, smoking marijuana, and playing video games. The defendant was wearing a gold chain, with a distinctive gold religious medallion, that Cotto had never seen before. The defendant later said that he needed money and planned to pawn the chain; the day after he said this, he stopped wearing the chain.
After he had been at Cotto’s apartment for a few days, the defendant told Cotto that he had “shot two dudes” named “Abraham and Greg” in Massachusetts, and that he had to “get out.” He said that he had shot each at least twice in the head, and
Postarrest statements. On January 12, 2000, after receiving information that the defendant might be at that address, Jersey City police officers arrested the defendant on a fugitive from justice warrant in the street outside Cotto’s apartment. The defendant was taken into custody at approximately noon and brought to a police station, where officers contacted police in Massachusetts. Massachusetts State Troopers George Beaupre and Ronald Gibbons and Detective Emil Morales of the Holyoke police department left Massachusetts early that afternoon and arrived at Jersey City police headquarters at approximately 6:15 that evening to interview the defendant. Details of the interview process and the defendant’s oral statements were introduced at trial through testimony by the State troopers;
The interview began at 6:43 p.m. Beaupre advised the defendant that the officers were there because of two murders and an attempted murder in Holyoke, and that warrants had issued for the defendant’s arrest on those charges. Beaupre told the defendant that he would be reading him his Miranda rights. Handing the defendant a Miranda waiver card, Beaupre asked if he was able to read English. The defendant replied that he could, and that he “knew his rights.” Beaupre responded that he would read them anyway and the defendant could read along if he chose. Beaupre read aloud from his copy of the card, asking the defendant to initial each line if he understood that right, and to let Beaupre know if he did not understand. The defendant initialed each line as it was read. Beaupre then asked if the defendant
The defendant proceeded to answer questions for several hours. Initially, he said that he knew about the murders in Holyoke, but that he had been in New York or New Jersey since September. After officers confronted him with information that he had been in Massachusetts on the day of the shootings, the defendant said that he had been with his sister, had gone to the mall with her, then left for New York by bus. He continued to change his story as officers informed him in greater detail of information they had obtained from other sources. Around 10 p.m., there was a half-hour break so that the defendant could eat some takeout food that had been ordered for him.
Sometime between 12:30 and 12:45 a.m., when the defendant asked how Cruz was doing, Beaupre replied that she was worried about him, and that she had spoken with officers because she would “rather see [the defendant] locked up, so I can see him, talk to him, and write to him. He would still be here with the family,” rather than dead on the street. The defendant broke down sobbing uncontrollably “for five or six minutes,” then said that there had never been any “bad blood” between himself and Gregory Sr., and that “what’s right on the street isn’t always right.” After approximately five minutes, he said that he could not “say any more,” that there was nothing else to say. Beaupre and Gibbons left the room, and Morales, who had known the defendant since childhood, stayed with him and engaged him in what the motion judge termed “conversation.” The defendant continued to speak, saying repeatedly that he “didn’t do it.” Fifteen or twenty minutes later, when Beaupre and Gibbons returned, the defendant said that he could not “say anything more.” The interview ended.
The defendant was arraigned in Jersey City on the fugitive from justice warrant on January 13. On January 18, he agreed to waive rendition, and, on January 24, at approximately 6 p.m., Beaupre, Gibbons, and Morales arrived to pick up the defendant from the Hudson County jail. As the cruiser was leaving the
They arrived at the Holyoke police station at approximately 10 p.m. Saying that he wanted “to get it done,” the defendant asked to make a statement before being booked, so that he could sleep. He was brought to a room in the detectives’ area, where the officers removed his handcuffs. He sat next to Gibbons so that he could read the computer screen. Gibbons typed as the defendant spoke; a number of times, Gibbons had to ask the defendant to slow down so that he could enter everything accurately. Shortly before 1 a.m., Gibbons printed the statement. The defendant reviewed and initialed each page, indicating written changes on several pages, and asking Gibbons to initial the changes. This review took one hour and six minutes. The defendant signed the statement at 1:58 a.m.
Prior proceedings. The defendant filed a motion in limine before trial that sought to suppress both the January 12 and January 24 statements. The motion was denied after an evidentiary hearing by the judge who presided at trial. The defendant
After the defendant was convicted in February, 2001, he timely filed his direct appeal, but the appeal did not proceed. In 2007, new appellate counsel was appointed and, in July, 2009, filed a motion for a new trial. In November, 2009, the motion judge, who was also the trial judge, conducted a nonevidentiary hearing, and determined that an evidentiary hearing was necessary. An evidentiary hearing was held in March, 2010. The judge then allowed the parties time to speak by telephone with the Jersey City officers, who were unable to travel to Massachusetts. An agreed-to statement of testimony that would have been given had the New Jersey officers appeared was submitted. The judge thereafter denied the defendant’s motion. The appeal from that denial was consolidated with his direct appeal.
Discussion. The defendant maintains that his oral and written statements to police should have been suppressed due to a number of violations of his rights to counsel and to remain silent. Some of these grounds were asserted in his motion in limine and others were raised through an ineffective assistance of counsel claim in his motion for a new trial. He claims also that a new trial is required due to the prosecutor’s delayed disclosure that Gregory Jr. had been unable to identify the defendant as “Rev” after the court room voir dire. The defendant argues further that his trial counsel was ineffective for failing to move to suppress the pawn ticket seized from him on the day of his arrest and the gold chain subsequently seized from the pawn shop.
1. Defendant’s statements to police. The defendant pursues on appeal all of the grounds for suppression raised in his initial motion in limine, concerning violations of his right to counsel and his right to remain silent. He presses as well the issues raised in his motion for a new trial: the continued interrogation after the defendant invoked his right to silence on January 12; the admission of the defendant’s statement that he had nothing more to say; the admission of the signed Miranda waiver cards after the defendant said he would not “sign[] anything” without having consulted with counsel; and asserted violations of Commonwealth v. Rosario,
a. Standard of review. As to the claims raised in the defendant’s motion in limine that violations of his rights to silence and to counsel required suppression, regardless whether renewed at trial, see Commonwealth v. Whelton,
As to the additional grounds for suppression raised in his motion for a new trial, we consider whether counsel’s failure to raise these claims resulted in a substantial likelihood of a miscarriage of justice. See Commonwealth v. Wright,
b. Statements on January 12. i. Statements after limited assertion of right to counsel. The defendant suggests, both in his motion in limine and in his motion for a new trial, that the assertion of his limited right to counsel for purposes of “signing anything” was an invocation of his right to counsel for all purposes, or, alternatively, even if his invocation was limited, that his subsequent, uncounselled verbal statements were not
Where a defendant asserts a voluntariness objection, the Commonwealth must prove beyond a reasonable doubt that the statements were voluntarily made. See Commonwealth v. Tavares,
We are satisfied that the defendant’s statements were freely, intelligently, and voluntarily made. The defendant spoke in a relaxed fashion with police, one of whom was a childhood friend. He gave different versions of his story, unprompted, as he learned more about what police knew. He spoke with the Massachusetts officers in what was described by the New Jersey officers, who were not part of the interrogation but were present in the room, as a “pleasant” and “conversational]” style. There was no error in allowing admission of the oral statements the defendant made after having invoked his right to counsel for the limited purpose of “signing anything.”
ii. Statement that defendant had nothing more to say. The defendant asserted in his motion for a new trial that the admission of his statement that he could not say any more was a violation of Doyle v. Ohio,
Relying on Commonwealth v. Martinez,
iii. Statements after defendant said he could not say any more. In his motion for a new trial, the defendant objected to introduction of his repeated statements to Morales that he “didn’t do it,” after the State troopers left the room when the defendant said, “I can’t say any more.” Treating the defendant’s statement as a limited invocation of his right to remain silent for that night, the motion judge characterized the ongoing interview by Morales as “conversation,” concluding that, because he was not convinced that it was “interrogation,” there was no error. To the extent that the defendant had invoked his right to silence, however, the police were bound to “scrupulously honor[]” that invocation, see Commonwealth v. Clarke, supra at 343, quoting Michigan v. Mosley,
However, in this context, the admission of the defendant’s repeated denials of guilt did not result in a substantial likelihood of a miscarriage of justice. “The jury were able to hear evidence of his prompt, clear, and emphatic denials without his having to testify, something generally of great value to defend
c. Statements on January 24. i. Statements in police cruiser. In his motion in limine, the defendant maintained that his statements in the police cruiser on January 24 should not have been admitted because they were obtained after his invocation of the right to silence on January 12.
Even if the defendant had intended on January 12 to invoke his right to silence permanently, rather than simply to end questioning for the evening, the statements were admitted properly. See Michigan v. Mosley, supra at 105-106. There was a lapse of eleven days between interrogations. The defendant was given a second set of Miranda warnings on January 24 before he made any statement. He told the officers that he understood his rights, signed the waiver cards stating that he understood those rights, and affirmatively agreed to speak with police. He made no reference to his statement on January 12 that he would not sign anything without a lawyer, or to an invocation of a right to silence. The officers all testified that the defendant appeared willing, even “eager” to talk, and spoke freely and at length in response to questions. See Commonwealth v. Woodbine,
ii. Written statement. The defendant argued in his motion in limine that his written statement on January 24 was obtained after his invocation of the right to counsel for “signing anything” on January 12, and thus was introduced in violation of Edwards v. Arizona,
The defendant’s conduct at the police station evinces clearly that his written statement was voluntarily made. He requested to make the statement before booking, and gave the entire statement with virtually no prompting, at times speaking so quickly that Gibbons had to ask him to slow down. The defendant then reviewed the printed statement in “very meticulous” detail for over one hour before signing it. At no point did he mention a lawyer. There was no error in the admission of the defendant’s written statement.
d. Miranda waiver cards. In his motion for a new trial, the defendant argued that counsel was ineffective for failing to have sought suppression of the Miranda waiver cards he signed on both January 12 and January 24, because the defendant’s limited invocation of his right to an attorney for “signing anything” included the waiver cards. The judge found that, by the defendant’s statement that he would not “sign anything” without an attorney, the defendant clearly meant that he would not sign a formal written statement before consulting with counsel; he was not referring to signing the cards, which he had already initialed, and which served only to indicate that he had been given the Miranda warnings. The judge concluded that counsel could not have been ineffective for failing to move to suppress the cards, a motion which the judge would have denied.
The cards were properly admitted. Signing Miranda waiver forms is an administrative act and not custodial interrogation. There is no Fifth Amendment right to counsel for administrative matters such as signing Miranda waiver forms acknowledging
e. Whether statements were made in violation of Rosario. In his motion for a new trial, the defendant asserts that the interrogations on both January 12 and January 24 were conducted in violation of Commonwealth v. Rosario,
Recognizing both that police have “the duty to bring an arrested person before a court as soon as is reasonably possible,” Rosario, supra at 51, and that “[t]he ultimate question. . . is whether the police should be allowed to delay arraignment in order to question a person who has been arrested,” id. at 53, “this court announced a bright-line rule creating a safe harbor for the interrogation of arrested individuals prior to arraignment.” Commonwealth v. Siny Van Tran,
i. Delay on January 12. The defendant claims that all of his statements on January 12 must be suppressed because New Jersey police “purposefully held [him] without presentation for more than six hours” “even though they had time to take him to court,” “expressly for the purpose of enabling interrogation,” and in violation of the “spirit” of Rosario. In Commonwealth v. Morganti,
The Massachusetts police could not have interrogated the defendant during the six-hour period following his arrest in New Jersey because they first needed to travel from Massachusetts to New Jersey. There is no suggestion that they delayed unreasonably in getting to New Jersey, that the Jersey City police interrogated the defendant in their absence, or that, when they arrived, the Massachusetts police interrogated the defendant for more than six hours. The defendant calls attention to the fact that the Jersey City police could have brought him to court
We agree with the judge that, in the totality of the circumstances, the spirit of Rosario was not violated. Massachusetts police left for New Jersey promptly upon being notified of the defendant’s arrest. The judge found that “[t]he involvement of the Jersey City police was limited to arresting the defendant on the fugitive charge, holding him in custody, and providing facilities where the Massachusetts officers could interrogate [him].” He concluded that the Massachusetts and Jersey City police were not “acting in concert,” and that the Jersey City police believed that their only role was to keep the defendant in custody until Massachusetts officers arrived. See Commonwealth v. Cryer,
The judge found that the delay of four business days in retrieving the defendant was not unreasonable. He credited the Massachusetts officers’ explanations for that delay, i.e., the need to coordinate schedules between police departments, to obtain approval for travel and arrange paperwork, to set up interviews requiring the presence of New Jersey detectives while the Massachusetts officers were in New Jersey, and to devote time to other investigations for which they had responsibility. Finding that the Massachusetts officers “did not delay their trip to New Jersey until January 24 in order to gain some advantage,” the judge concluded that neither the purpose nor the effect of the delay was to coerce the defendant.
Although, as the defendant argues, the Massachusetts officers also continued the investigation against him in the period between January 18 and January 24, the judge found explicitly that such investigation “was not a factor” in the defendant’s decision to speak with police on January 24. To the contrary, the period during which the defendant was held in New Jersey “had no effect upon the defendant’s freely made decision to speak with” Massachusetts police on January 24. We conclude that there was no Rosario violation, and that the January 24 statements were properly admitted.
2. Prosecutor’s delay in disclosing Gregory Jr.’s inability to identify the defendant at voir dire. On the first day of trial, the judge conducted a voir dire to determine if Gregory Jr. and his brother Edrike were competent to testify. The defendant was present, sitting at counsel table, during the proceeding. The judge concluded that both boys were competent. At the pros
Although the prosecutor learned from Beaupre shortly after the voir dire that the boys had not recognized “Rev” in the court room, he called Gregory Jr. to the stand the following day without disclosing this information to the defendant. The judge allowed the prosecutor’s request that the chairs be moved in the court room so that the prosecutor could sit eight feet away from Gregory Jr. in order to make him more comfortable,
After Gregory Jr.’s testimony, the prosecutor first presented at sidebar a lengthy argument that Edrike’s statement to his mother, recounting Gregory Jr.’s statement that “Rev” shot him, was an excited utterance. Only then did he turn to what he described as a “more problematic” issue. In introducing that issue, he asserted that he had not been expecting Gregory Jr. to identify the
The judge determined properly that the prosecutor erred in failing to disclose this exculpatory and material information. He concluded that the prosecutor did not act in bad faith in calling Gregory Jr. to the stand without having made such disclosure, however, because the prosecutor did not expect that Gregory Jr. would identify the defendant.
The defendant argues that a new trial is necessary because the late disclosure prejudicially hampered his defense. He was unable, during his opening statement, to reference Gregory Jr.’s inability to identify him, and was restricted in the arguments that he could make during closing.
The Commonwealth concedes properly that the prosecutor’s failure timely to disclose an inability to identify the defendant by the Commonwealth’s key witness was a failure of constitutional dimension. See Commonwealth v. Hill,
Notwithstanding the serious nature of the Commonwealth’s failure, however, see Commonwealth v. Hill, supra at 715, quot
The judge took immediate and strong corrective action, and the jury heard testimony, immediately following Gregory Jr.’s improper identification, that the in-court identification he had made was not in fact independent, but was made only after his mother’s explanation of where the defendant was sitting. On cross-examination, defense counsel was able to elicit that Gregory Jr. had “practiced” his testimony four times with the prosecutor, and also had practiced at home with his mother. Further, during his closing, the defendant pointed to Garcia’s coaching of Gregory Jr.’s identification testimony to suggest that other portions of his testimony had been coached. See Commonwealth v. Lam Hue To, supra (“Whether and the extent to which the defendant was disadvantaged in defending himself are the pivotal issues .... [I]t is the consequences of the delay that matter, not the likely impact of the undisclosed evidence . . .”).
Moreover, there was significant additional evidence that Gregory Jr. had identified Rev as the shooter, and the defendant as Rev, shortly after the shooting. Edrike, Edrike’s friend’s mother Mattei, who was the first adult to arrive on the scene, and the senior paramedic at the scene all testified that Gregory Jr. had identified “Rev” as the person who shot his father and who shot him.
3. Pawn ticket and gold chain. The defendant claimed in his motion for a new trial that the pawn ticket and the gold chain seized as a result of that ticket should not have been admitted because seizure of the pawn ticket was the product of an unlawful investigatory search of his already-inventoried property.
When the officers arrived from Massachusetts to interview the defendant on January 12, 2000, his inventoried property was on a desk in the detective squad room where the defendant was seated. While Beaupre was reading the Miranda warnings, Gibbons “glanced” over at the desk and saw an unfolded receipt from a pawn shop, with the name “Jemma Loan Company” printed in large red and gold letters at the top. Gibbons observed that the ticket, in the name “Ismail Bonilla,” was for a “10K chain & rel. pendant” and a “10K bracelet.” Aware of Gregory Sr.’s missing gold chain, Gibbons recognized the pawn ticket as potential evidence, as did Beaupre when Gibbons pointed it out. When they asked the defendant about a backpack that he had been carrying on the day of the shootings, he responded that he brought it with him to New York, it contained clothing and a gold chain, and he pawned the gold chain in Jersey City. Officers then questioned him about the chain.
The pawn ticket had not been individually inventoried on the defendant’s property log, which contained an entry for “miscellaneous papers.” At Gibbons’s request, the Jersey City police bagged the ticket separately as evidence before the officers returned to Massachusetts. It remained in the custody of the Jersey City police until February 3, when Jersey City officers, acting on an affidavit from a Massachusetts officer, obtained a warrant to seize the chain, and the Massachusetts and Jersey City officers jointly executed the warrant.
The defendant argues that the pawn ticket was seized im
An inventory search may not be a pretext for an investigatory search. See id. at 551-552 & n.12. However, even were we to assume, without deciding, that the seizure of the pawn ticket was in violation of Vuthy Seng, supra
4. Review pursuant to G. L. c. 278, § 33E. Although the defendant did not request relief under G. L. c. 278, § 33E, we have reviewed the entire record pursuant to our duty under that statute, and conclude that there was insufficient evidence to support the convictions of murder in the first degree on a theory of extreme atrocity or cruelty. As stated, the victims, apparently unaware, were shot at close range in the back of the head. The medical examiner testified that the victims would have died virtually instantaneously. See Commonwealth v. Brown,
Judgments affirmed.
Order denying motion for a new trial affirmed.
Notes
An indictment charging another firearms offense was dismissed by agreement.
Because two of the victims share the same name, we refer to them by their first names and the appropriate suffix. We also refer to the seven year old brother of the third and younger victim by his first name.
Gregory Sr. was shot three times, and Candelario was shot twice, with the same revolver; Gregory Jr. was also shot with that weapon.
The four wounds to Gregory Jr.’s neck and chest were all caused by a single bullet.
Mattei had some difficulty with English at the time of the shooting. In her statement to police, she said she thought the friend’s name was “Rick”; at trial, she testified that she was sure the name began with an “R,” but it could also have been “Rev” or “Rick.”
The senior paramedic on scene, who was treating the other victims in the living room adjacent to the hallway, and was the only paramedic to testify at trial, was not sure if he heard Gregory Jr. say the name “Rev” or “Reb.”
A shopper at a neighborhood grocery store a few minutes from the CántelaGarcia apartment was in the store when the defendant entered, shortly after 1 p.m., and asked if the store sold bags. When he was told that it did not, he left. The shopper identified the defendant from a photographic array.
The interviews on January 12 and 24, 2000, which took place before this court’s decision in Commonwealth v. DiGiambattista,
In his written statement, the defendant said that he had gone to the Cantela apartment to warn Gregory Sr. about a planned robbery by two mutual acquaintances, and found the two victims in the living room, dead. He took the chain from around Gregory Sr.’s neck because Gregory Sr. had no further use for it. He took the video games from the PlayStation console and put them in his pocket; he was not sure why. He found Gregory Jr. in his bedroom, lying on the floor facing the wall, with a gunshot wound in his back, moving but unable to talk. The defendant’s gun, which had been stolen by one of the two mutual acquaintances several months earlier, was on the floor next to Gregory Jr.. He had another gun with him, which he was holding because he thought the shooters might still be in the apartment, and which Gregory Jr. saw. He told Gregory Jr. that his “daddy went bye bye,” then left before police found him holding the guns. He threw out the guns in one of the trash cans at the mall.
The judge, who also ruled on the motion in limine, found at the hearing on that motion that the officers understood the defendant to have meant he was tired, emotionally overwrought, and could not say anything else that evening, not that he was unwilling to answer questions at some future date. The judge concluded that the defendant “had not invoked his right to remain silent permanently,” because he had not “foreclose^]” the possibility of additional interviews at some later date.
Officers testified that the defendant began to cry after they told him that Cruz was worried about him and they described her statement to him. Portions of Cruz’s statement were also introduced by the defendant on cross-examination of Beaupre and Gibbons, who testified after Beaupre.
The judge noted that the record suggests that the Jersey City police “had sufficient time to bring the defendant to court before 3:30” on January 12 and found it “undisputed that the defendant was not brought to [court] to be arraigned on the fugitive from justice charge until the morning of January 13.” The defendant was held in the major case unit’s detective squad room pending arrival of the Massachusetts police, where he watched television and was provided with food and drink. The major case unit was not in the same building as the bureau of central identification (BCI), where the formal booking process takes place. However, BCI, the major case unit, and the court house were located within fifteen minutes of each other.
Although the Jersey City police were “requested” by Massachusetts police “to stay with [the defendant] and make him as comfortable as possible and to transport him to BCI when the Troopers had concluded their interview,” there is no evidence that the Massachusetts police had specific communications with the Jersey City police concerning any court appearance that day.
The judge also permitted the prosecutor’s motion that the boys’ mother remain in the court room during Gregory Jr.’s and Edrike’s testimony, although she would be a subsequent witness.
The judge suggested sua sponte that defense counsel would also be permitted to sit eight feet away if he chose; counsel said that he would not. Gregory Jr. had not met defense counsel prior to trial; by contrast, he knew the prosecutor as “Jim,” and testified on cross-examination that “Jim” was his “friend.”
We note that, in January, 2001, a few days before trial was to commence, trial was continued for approximately one month by a different judge, at defense counsel’s request, because of the prosecutor’s delayed disclosure of a potentially exculpatory witness. Counsel stated at the hearing, as he did in his memorandum, that, while he considered this evidence potentially the best possible defense and needed time to investigate it further, the defendant strongly opposed any continuance. The judge conducted a colloquy with the defendant, who said initially that he wanted counsel replaced because counsel had filed the motion to continue, contrary to his wishes.
The judge cautioned the prosecutor about the duty to disclose exculpatory evidence, and the potential difficulties that could arise if counsel’s efforts to provide the best possible defense resulted in conflict with the defendant that irretrievably damaged the attorney-client relationship and impinged on counsel’s ability to represent the defendant. Despite the prosecutor’s strenuous opposition, the judge allowed the continuance, and the defendant decided to retain counsel. The prosecutor subsequently provided defense counsel with a second statement by the same potential exculpatory witness, one that had been given to police in the same month as the first statement belatedly disclosed by the prosecutor. Counsel ultimately decided not to use that evidence.
Defense counsel made clear that he thought the prosecutor’s belated disclosure was “appalling” and put his client at a material disadvantage. Not only would he be hard put at that point to recall the child to the stand, he contends on appeal that the prosecutor’s proposed solution of eliciting the information through Garcia allowed him both to bring out the belated disclosure in a benign manner and to create the impression by so doing that he was being open and fair. Noting to the judge in apparent frustration that “down here getting discovery is like pulling teeth,” defense counsel also made reference to a prior agreed-upon order requiring that such information be disclosed, and protested that this latest instance of belated disclosure admitted of no good solution. “At this point I don’t know what we can do, Your Honor.” See Commonwealth v. Merry,
The judge instructed defense counsel that he could not suggest any misconduct on the part of the police or prosecution.
Although their mother testified that she had seen the defendant wearing many different hairstyles, both children knew Rev as having a very large, distinctive “Afro” hairstyle. When shown a photograph of the defendant with his hair pulled back, which Garcia had identified as being a photograph of the defendant, Edrike did not identify him. Gregory Jr. subsequently identified the defendant from a different photograph, in which he wore a large “Afro." At trial, the defendant’s hair was slicked back close to this head; he had also gained approximately forty pounds since the shootings.
Gregory Jr.’s mother was also permitted to testify that Edrike told her that Gregory Jr. said Rev shot him. This “totem pole” hearsay should not have been admitted. The defendant objected to its admission, and the judge determined initially that the statement was inadmissible hearsay. Subsequently, he allowed its admission on the ground that Gregory Jr.’s statement was an excited utterance and thus independently admissible. This reasoning applies to
We do not address the propriety of the New Jersey officers’ actions in segregating and setting aside the pawn ticket, and placing it atop the defendant’s other inventoried possessions, where it would be visible to the Massachusetts officers. Notwithstanding documentary evidence suggesting that their actions in connection with the pawn ticket, perhaps initially folded and contained within an envelope that was inside the defendant’s wallet, may not have been in compliance with Jersey City police procedures regarding inventory searches, the judge made no findings with respect to this matter.
Resolution of the point would, in any event, serve no deterrent purpose for Massachusetts police. There is no suggestion in the record that Massachusetts police had earlier communicated with Jersey City police concerning a missing gold chain or anything else to which the pawn ticket might be pertinent, and it appears that Jersey City police were acting independently in this regard. The Massachusetts officers were unaware of any such actions when they later saw the unfolded ticket on the desk in the detective squad room. They acted properly thereafter in working with the Jersey City officers to obtain a warrant, based on the pawn ticket, to seize the chain.
The defendant asserts a number of other errors in his new trial motion, none of which creates a substantial likelihood of a miscarriage of justice. He points to counsel’s failure to object for cause to one juror whom the judge had determined, following a voir dire concerning the juror’s prior professional acquaintance with the prosecutor, could be fair and impartial. The defendant claims without support that Cotto testified falsely at trial, as did various Massachusetts police officers at the evidentiary hearing on his motion for a new trial; the judge found explicitly that the officers were credible.
The defendant protests also the judge’s ruling that, if the defendant were going to testify at the hearing on the motion for a new trial, he would have to do so before the other testimony on the first day; the hearing was then continued so that the parties could attempt to resolve issues with obtaining written statements from the Jersey City police officers, who were unable to appear and testify. There was no error. The defendant consulted with counsel, was asked if he would testify, and decided not to do so.