HEARD: March 11, 2016.
found and returned in the Superior Court Department on
November 2, 2004.
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.
M. Thompson for the defendant.
Katherine E. McMahon, Assistant District Attorney, for the
Present: Gants, C.J., Spina, Cordy, Botsford, & Hines,
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.
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.
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.
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.
recite the facts in the light most favorable to the
Commonwealth, reserving certain details for our analysis of
the issues raised on appeal.
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 . "
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
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
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.
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 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
Motion to suppress statement.
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
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,  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.
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.
to trial, the defendant moved to suppress his statement. He
argued that the statement was obtained in violation of his
Fifth Amendment rights,  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. 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.
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.
Statutory right to use telephone.
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).
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,  "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
Right to counsel.
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.
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)
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. 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.
Knowing and voluntary waiver of rights.
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. 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.
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
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) .
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. The jury also heard substantial
evidence supporting the defendant's self-defense theory:
the victim was significantly larger than the
defendant; and the victim had been trained in
unarmed combat, including the incapacitation and killing of
individuals, with or without weapons. 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.
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.
Defense of another.
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. 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) .
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).
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.
Other jury instruction issues.
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).
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, ...