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Commonwealth v. Vargas

Supreme Judicial Court of Massachusetts, Hampden

August 30, 2016

COMMONWEALTH
v.
PABLO VARGAS.

          HEARD: March 11, 2016.

         Indictment found and returned in the Superior Court Department on November 2, 2004.

         A pretrial motion to suppress evidence was heard by Daniel A. Ford, J.; the case was tried before Francis R. Fecteau, J.; and a motion for a new trial, filed on December 23, 2013, was heard by C. Jeffrey Kinder, J., and a motion for reconsideration was also heard by him.

          John M. Thompson for the defendant.

          Katherine E. McMahon, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Spina, Cordy, Botsford, & Hines, JJ. [1]

          CORDY, J.

         There is no dispute that on the night of September 23, 2004, the victim, Tremayne King, was killed by the defendant, Pablo Vargas. The defendant stabbed the victim eight times during an altercation at the residence of the victim's estranged wife, Yanira Rodriguez, who was the defendant's girl friend. At trial, the defendant sought to rebut the charge of murder in the first degree on the theory of self-defense, alleging that he fought and killed the victim because he feared for his life.

         On May 24, 2006, a Hampden County jury convicted the defendant of murder in the first degree on a theory of extreme atrocity and cruelty, rejecting the Commonwealth's alternative theory of premeditation. In December, 2013, the defendant moved for a new trial, which was denied, as was his motion for reconsideration thereof.

         On appeal from his conviction and from the denial of his motion for a new trial, the defendant claims that (1) his statement made during police questioning shortly after the altercation should have been suppressed; (2) the trial judge erred in excluding relevant so-called Adjutant evidence of the victim's history of violence, see Commonwealth v. Adjutant, 443 Mass. 649, 664 (2005); (3) the judge erred in admitting certain testimony concerning the defendant's statements made to a third party; (4) the judge erred in denying his request for an instruction on defense of another; (5) the judge's jury instructions on malice, self-defense, and voluntary manslaughter were erroneous and created a substantial likelihood of a miscarriage of justice because they allowed the jury to convict the defendant without considering mitigating circumstances; (6) a qualified interpreter should have been appointed to assist with the testimony of Rodriguez, who was a witness to the altercation; (7) his right to a public trial was violated when the court room was closed during jury selection; (8) trial counsel was ineffective; and (9) evidence that was newly discovered after trial warranted the granting of a new trial. The defendant also requests that we exercise our authority under G. L. c. 278, § 33E, to order a new trial or reduce the verdict of murder in the first degree to voluntary manslaughter.

         Although our review of the record does not reveal any errors that would warrant a new trial, the circumstances of this case persuade us that a reduction of the defendant's conviction from murder in the first degree to voluntary manslaughter is more consonant with justice. We therefore vacate the defendant's conviction of murder in the first degree and his sentence, and we remand the case to the Superior Court for the entry of a verdict of guilty of voluntary manslaughter and for imposition of sentence.

         Background.

         We recite the facts in the light most favorable to the Commonwealth, reserving certain details for our analysis of the issues raised on appeal.

         At 11:48 P.M. on September 23, 2004, Springfield police Detective Norman Shink and three other officers arrived at an apartment building on Bristol Street in Springfield. Shink saw a man, who was later identified as the defendant, in front of an apartment on the second floor. The defendant lifted his shirt, revealing a bloody knife tucked into his waistband, and said, "This is the knife I used to stab him. Take it. Take it. He was beating me real bad. I had no choice. It was self-defense . "

         Rodriguez lived in the apartment on Bristol Street with her three children. She was married to the victim, but the two were estranged. The victim had enlisted in the National Guard, and on July 10, 2004, was assigned to Fort Drum, in New York, to train for deployment to Iraq. At that time, the victim and Rodriguez separated. The victim left a number of personal belongings stored at the apartment, including several handguns.

         In August, 2004, the defendant began staying at Rodriguez's apartment, and he was there on the evening of September 23. That day, Rodriguez received a telephone call from the victim, who had received a pass from the National Guard and planned to return to the apartment to retrieve his belongings. The victim did not specify when he would be arriving.[2]

         The defendant was present when Rodriguez spoke with the victim. She discussed the conversation with him and encouraged him to leave before the victim arrived. The defendant did not do so.

         At approximately 11:30 P..M. that evening, Rodriguez was sitting on a couch watching television in the living room. She heard a sound at the door and observed a hand reaching in through the partially opened door and sliding the chain lock up to release it and gain access to the apartment. At this point, the victim burst in and attacked her, hitting her with his fists as she covered her face with her arms. The defendant, who was in the bedroom at the time, came into the living room and said something to the victim. The victim ran at the defendant, knocking him back into the bedroom and jumping on top of him. The defendant shouted for Rodriguez to telephone the police, and Rodriguez ran to an apartment next door. One of the occupants answered the door; Rodriguez begged him to telephone 911 and stated that the victim had a firearm, although she had not seen the victim with any weapon. When she returned to her apartment, Rodriguez saw the victim lying on the couch, bleeding. No firearm was found in the victim's possession.

         The victim went into cardiac arrest and died while being transported to the hospital. A medical examiner determined that of the eight stab wounds sustained by the victim, four had been lethal. One wound to the victim's left upper arm was defensive.

         Discussion.

         1. Motion to suppress statement.

         The defendant was arrested and interrogated by Sergeant Roy Carter and Shink at the Springfield police department in the early hours of September 24, 2004. The interview was recorded.[3], [4]

         Prior to questioning, Carter read and presented the defendant with the Miranda rights. See Miranda v. Arizona, 384 U.S. 436 (1966). When Carter instructed the defendant as to his right to an attorney, [5] the defendant asked, "Is there a lawyer here present?" Carter responded, "No, there isn't." Carter then proceeded with his presentation of the Miranda rights, including that the Commonwealth would provide a lawyer if the defendant could not afford one. Carter read the Miranda warnings for a second time, the defendant initialed the warnings as they were read, and the defendant indicated that he wished to speak to police.

         The police then notified the defendant of his right to use the telephone. The defendant indicated that he intended to use the telephone, and Carter told him that he would be allowed to do so. The defendant checked the box indicating that he had used the telephone, and signed that he had been notified of his rights. The space on the form for timing of the defendant's telephone call was left blank, and the defendant never made a telephone call.

         Prior to trial, the defendant moved to suppress his statement. He argued that the statement was obtained in violation of his Fifth Amendment rights, [6] specifically that (1) he had not made a voluntary waiver of his Miranda rights due to his lack of language skills; (2) his waiver was not knowing because of the faulty Miranda warning; and (3) his statement, "Is there a lawyer here present?" constituted an invocation of his right to counsel, which invocation was not scrupulously honored.[7] At an evidentiary hearing on the issue, the defendant, Carter, and Shink testified. Carter and Shink both testified that the defendant was eager to share his version of events. The judge credited the officers' testimony, and, after reviewing the recording of the interview, denied the motion. The judge found that the defendant had been advised of his rights, that he had a sufficient command of English to understand and waive those rights, that he had been informed of his statutory right to use the telephone, and that he had not made an unambiguous request for counsel.

         On appeal, the defendant challenges the denial of his motion to suppress on three grounds: (1) the police did not scrupulously honor his invocation of his art. 12 right to counsel; (2) his statutory right to use the telephone, under, G. L. c. 276, § 33A, was intentionally violated; and (3) he did not make a knowing and voluntary Miranda waiver.

         a. Statutory right to use telephone.

         Under G. L. c. 276, § 33A, "an arrested person [must] be informed of his right to use the telephone as soon as reasonably practicable after arrival at the station." Commonwealth v. Bouchard, 347 Mass. 418, 420 (1964). "The exclusionary rule applies to intentional deprivation by police of a defendant's rights under G. L. c. 276, § 33A." Commonwealth v. Hampton, 457 Mass. 152, 155 (2010).

         There was not an intentional deprivation of the defendant's statutory telephone rights. The defendant was informed of his right to use the telephone after waiving his Miranda rights. Carter asked the defendant if he "intend[ed] to use the [tele]phone." The defendant said, "Yes." Some confusion followed, as there was no indication that the defendant wanted to use the telephone at that moment or after he spoke with police. The record does reflect, however, that the defendant was eager to speak to police. In any event, although the defendant was not informed of his right to use the telephone for at least one hour and twenty-five minutes after he had been brought to the station, [8] "he was informed before the inculpatory statement was given." Commonwealth v. Espada, 450 Mass. 687, 702 (2008). Contrast Commonwealth v. Jones, 362 Mass. 497, 503 (1972) (statement suppressed where police waited more than one hour to inform defendant of right to make telephone call and damaging confrontation occurred in interim period). There was no error.

         b. Right to counsel.

         The defendant claims that his question, "Is there a lawyer here present?" asked while Carter was reading him his Miranda rights, was an invocation of his right to counsel, and should have resulted in the cessation of the interrogation. His subsequent statements, he argues, should therefore have been suppressed. We disagree.

         Miranda, 384 U.S. at 444, requires that "[p]rior to any questioning, the [suspect] must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Miranda "protects both Fifth Amendment rights and rights guaranteed under art. 12" (citation omitted). Commonwealth v. Clarke, 461 Mass. 336, 345 (2012). Once a suspect invokes his or her right to counsel, "all interrogation must cease until counsel is made available, unless the [suspect] himself [or herself] reinitiates further communication with the police." Commonwealth v. Hoyt, 461 Mass. 143, 149 (2011)

         The defendant's question concerning whether an attorney was present at the police station was, at best, ambiguous as to whether he was invoking his right to counsel.[9] In response, Carter properly sought to clarify any ambiguity by repeating that the defendant had a right to counsel prior to questioning, advising him that he would be provided with an attorney if he could not afford one, and asking him if he understood those rights. The defendant told Carter that he did, and proceeded to initial the document to indicate his acknowledgement and then to assent to police questioning. There was no error in the judge's ruling that the defendant had not invoked his right to counsel.

         c. Knowing and voluntary waiver of rights.

         The defendant twice heard and then signaled comprehension of his Miranda rights. When the defendant asked if there was a lawyer present during the reading of his rights, the police responded accurately and promptly. Prior to questioning, Carter verified that the defendant was not intoxicated and that he could comprehend the English language.[10] The motion judge found and the record reflects that the defendant was eager to share his version of the events with police. We note also that the defendant's statement to the police was self-serving, in that it supported his theory of defense. There was no error, and the denial of the defendant's motion to suppress is affirmed.

         2. Adjutant evidence.

         At trial, the defendant sought to introduce, under Adjutant, 443 Mass. at 664, evidence concerning the victim's history of violence in order to show that the victim was the initial aggressor in the altercation that resulted in the victim's death. That evidence would largely have consisted of testimony concerning the victim's prior violence toward Rodriguez. The trial judge determined that the issue as to the initial aggressor was not in dispute, and did not allow the evidence to be admitted for that purpose.[11]

         "[W]here the identity of the first aggressor is in dispute and the victim has a history of violence, . . . the trial judge has the discretion to admit evidence of specific acts of prior violent conduct that the victim is reasonably alleged to have initiated, to support the defendant's claim of self-defense." Adjutant, 443 Mass. at 664. The definition of "first aggressor" pertains not only to "the person who initiated the confrontation, but also the person who initiated the use or threat of deadly force, as 'resolution of both issues may assist the jury in deciding whether the prosecution has met its burden of proving that the defendant did not act in self-defense.'" Commonwealth v. Camacho, 472 Mass. 587, 592 (2015), quoting Commonwealth v. Chambers, 465 Mass. 520, 529-530 (2013) .

         Evidence of the victim's history of violence would not have bolstered the defendant's case, as the question of initial aggressor was never at issue. There was no conflicting evidence as to the series of events leading up to the victim's death. The only accounts of the altercation came from the defendant (through his statement to police) and Rodriguez, who was called as a Commonwealth witness, both of which were consistent in their portrayal of the victim as the initial aggressor.[12] The jury also heard substantial evidence supporting the defendant's self-defense theory: the victim was significantly larger than the defendant;[13] and the victim had been trained in unarmed combat, including the incapacitation and killing of individuals, with or without weapons.[14] Based on that evidence, and given that there was no deadly weapon found with the victim, the assumption required to make the defendant's self-defense case was that the victim immediately used deadly force (with his hands and body) when the altercation began, and a deadly weapon was not necessary. The defendant's proposed history of violence evidence would therefore have been both cumulative and unnecessary in making a case of self-defense, see Adjutant, 443 Mass. at 663, and there was no "great [] danger that the exclusion of the evidence concerning the victim's violent acts" prejudiced the defendant. Camacho, 472 Mass. at 593.[15]

         3. Jury instructions.[16]

         The jury were instructed as to the prerequisites for a guilty finding of murder in the first degree, murder in the second degree, and manslaughter. As to murder in the first degree, the jury were instructed on the theories of deliberate premeditation and extreme atrocity or cruelty. The jury returned a verdict convicting the defendant or murder in the first degree under the theory of extreme atrocity or cruelty. The defendant now claims error with the judge's decision, over his objection, not to instruct the jury on defense of another, and, for the first time, objects to various portions of the self-defense and homicide instructions, particularly those related to malice and voluntary manslaughter.

         a. Defense of another.

         The defendant argues that the judge erred by refusing to instruct the jury on the question of defense of another, given that he intervened after the victim's attack on Rodriguez.[17] Because the defendant's exception was preserved, we review the defendant's claim for prejudicial error. See Commonwealth v. Allen, 474 Mass. 162, 168 (2016) .

         Defense of another is warranted if "(a) a reasonable person in the actor's position would believe his intervention to be necessary for the protection of the third person, and (b) in the circumstances as that reasonable person would believe them to be, the third person would be justified in using such force to protect himself." Commonwealth v. Scott, 463 Mass. 561, 576 (2012), quoting Commonwealth v. Young, 461 Mass. 198, 208 (2012). "The reasonableness of the belief is from the point of view of the actor and not of the third party, such that whether the third party was actually entitled to use self-defense, or believed the use of force to be necessary, is not at issue." Scott, supra. "The actor's justification is lost if he uses excessive force, e.g., aggressive or deadly force unwarranted for the protective purpose." Id., quoting Commonwealth v. Martin, 369 Mass. 640, 649 (2012).

         The judge did not err in finding that the defendant was not entitled to an instruction on the use of force in defense of Rodriguez. Even viewing the evidence in the light most favorable to the defendant, Scott, 463 Mass. at 577, the evidence does not support an objective basis on which a reasonable person would have believed that the defendant was justified in using deadly force in defense of Rodriguez. The evidence tended to show that, when the defendant stabbed the victim, Rodriguez had left the apartment.

         b. Other jury instruction issues.

         The defendant, for the first time on appeal, claims error as to various portions of the jury instructions, particularly as to flaws in the self-defense and homicide instructions. Because the defendant did not object to the jury instructions, we review them to determine whether there was a substantial likelihood of a miscarriage of justice. See Commonwealth v. Valentin, 474 Mass. 301, 305 (2016). When reviewing jury instructions, we "evaluate the instruction as a whole, looking for the interpretation a reasonable juror would place on the judge's words" (citation omitted). Commonwealth v. Young, 461 Mass. at 207. We do not consider words from the instructions in bits and pieces or in isolation from one another. See J_d. If there is an error in the jury instructions, a new trial is called for unless we are "substantially confident that, if the error had not been made, the jury verdict would have been the same." Commonwealth v. Perm, 472 Mass. 610, 626 (2015), cert, denied, 136 S.Ct. 1656 (2016), quoting Commonwealth v. Ruddock, 428 Mass. 288, 292 n.3 (1988).

         i. Self-defense.

         The defendant takes issue with the following instruction: "A person may not use force in self-defense until he has availed himself of all proper means to avoid physical combat." The defendant argues that, under the circumstances of this case, the duty to retreat instruction should have been limited to the time frame of the face-to-face confrontation. The flaw was exacerbated because in closing argument, the prosecutor asked if the defendant did "all he could to avoid physical combat when he told [Rodriguez's neighbor] he wasn't leaving even though they knew [the defendant] was coming home[.]" This question, the defendant argues, in conjunction with the instruction, ...


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