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Commonwealth v. Santana

Supreme Judicial Court of Massachusetts, Essex

August 17, 2017


          Heard: January 10, 2017.

         Indictments found and returned in the Superior Court Department on December 12, 2008.

         A pretrial motion to suppress evidence, filed on June 8, 2009, and amended October 3, 2011, was heard by Kimberly S. Budd, J.; a second pretrial motion to suppress evidence, filed on April 12, 2012, was heard by Howard J. Whitehead, J.; a third pretrial motion to suppress evidence, filed on June 4, 2013, was heard by Richard E. Welch, III, J.; and the cases were tried before David A. Lowy, J.

          Elizabeth Caddick for the defendant.

          Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Lenk, Hines, & Gaziano, JJ.

          HINES, J.

         In January, 2014, a Superior Court jury convicted the defendant, Cesar Santana, of murder in the first degree of Rafael Castro, on the theories of extreme atrocity or cruelty, and felony-murder with home invasion and armed burglary, assault on occupant as the predicate felonies. On appeal, the defendant asserts error in (1) the denial of his motion to suppress statements; (2) the admission of hearsay testimony from various witnesses; (3) the denial of a requested DiGiambattista jury instruction; (4) the denial of the motion for a mistrial following the jury's exposure to inadmissible evidence; and (5) certain improper statements made in the prosecutor's closing argument. The defendant also requests that we exercise our authority pursuant to G. L. c. 278, § 33E, to reduce the murder conviction or to order a new trial. We affirm the defendant's convictions and decline to grant relief under G. L. c. 278, § 33E.


         1. The murder.

         We summarize the facts the jury could have found, reserving certain details for our discussion of the alleged errors. On the night of August 25, 2004, Norma Cedeno and her stepfather, Rafael Castro, were attacked by a group of men as the two entered Castro's Lawrence apartment.[1]

         Cedeno, who entered the apartment first and did not turn on any lights, walked to the bathroom, where she was grabbed by a man. Although she could not see the man's face, she felt something "like a gun" on her back. Hearing Cedeno scream, Castro ran into the apartment, and two men came out of the kitchen. As the men struggled, Cedeno, who had been pushed down to the floor and told to keep her head down, heard a gunshot, saw Castro on the floor, and heard men arguing in Spanish, some of whom asked, "Why did you shoot him?" Based on the voices she heard and the feet she could see walking around the apartment, Cedeno deduced that four men were involved in the incident.

         Thereafter, Cedeno was taken into a bedroom and made to lie on the floor. A pillowcase was put over her head. Although the men were initially going to duct tape her hands and feet together, they complied with her plea not to tie her up. Instead, one man remained in the bedroom with her. Cedeno could hear Castro's voice, which although clear at first, became fainter as time passed. During the time the men were in the apartment, Cedeno heard them "screaming, " hitting and threatening Castro, and demanding that he make a telephone call. At one point, the men brought Cedeno into the bedroom with Castro, removed her shirt, and threatened to burn her with an iron unless Castro agreed to make the call.

         Eventually, one man said to Cedeno, "Three of us are leaving and I'm staying here . . . and after I leave[, ] if you call the police or someone for help we're just going to come back for you." Although Cedeno did not know the men, they seemed to be familiar with Castro. After all of the men left the apartment, Cedeno went to the other bedroom and found Castro, taped up, bleeding from the gunshot wound on his head, and unable to talk. Cedeno cut the duct tape binding Castro and, eventually, telephoned 911.

         Paramedics who arrived in response to the 911 call determined that Castro had "no obvious signs of life." Castro's cause of death was the gunshot wound to his head.

         2. The investigation.

         The police recovered evidence from the apartment including two rolls of duct tape, one of which had blood on it, several pieces of duct tape, one piece of which was found in the bathroom trash barrel, and samples of bloodstains and pools in various areas of the apartment.

         A latent fingerprint from a roll of duct tape recovered from the scene was determined to be consistent with the known fingerprint of Joonel Garcia. Also, a deoxyribonucleic acid (DNA) swab was taken from a "small indentation" near the torn end of the piece of duct tape found in the bathroom trash barrel. It contained a mixture of the DNA of at least two individuals, including the defendant, whose DNA "matched" the major profile of the mixture.

         The police interviewed Jessica Encarnacion, who was the girl friend of Garcia and lived with him in an apartment in Lawrence. At trial, Encarnacion testified that four men --Garcia, the defendant, and two others -- arrived at around midnight at Garcia's apartment. Garcia was covered in blood. Ignoring Encarnacion's questions about what was going on, Garcia told her to pack because they had to leave the country. Thereafter, she and the four men drove to New York, stopping only to dispose of the gun. Once in New York, Garcia and Encarnacion purchased one-way tickets to the Dominican Republic and left the United States.

         In August, 2004, the defendant initiated a conversation with his probation officer, [2] during which he stated that he would be willing to provide information about a shooting in Lawrence in exchange for financial compensation. The defendant told this officer that a man named "Joonie" shot someone in the head, and that the defendant knew the location of the firearm used in the shooting. The probation officer passed the information on to the Boston police department.[3] In March, 2005, the defendant initiated a second conversation with his probation officer about the shooting in Lawrence. This time he told the officer that he had significant legal concerns and added that the shooting in Lawrence was actually a drug-related "homicide."

         On March 4, 2005, the police interviewed the defendant. At that time, the defendant was being held in a house of correction on unrelated charges. Present were Trooper Robert LaBarge of the State police and Detective Carlos Cueva of the Lawrence police department. Although the defendant indicated that he spoke and understood English, LaBarge asked Cueva to serve as a Spanish translator because Spanish was the defendant's primary language.[4] Initially, the defendant agreed to allow the police to audio record the interview. His demeanor was "cautious, " but he did not exhibit signs of emotional distress. The tone of the interview was conversational. During the recorded portion of the interview, the defendant was provided Miranda warnings in Spanish and the defendant read the warnings out loud in Spanish. After the defendant acknowledged that he understood and signed the written warnings, LaBarge began questioning the defendant about the murder of Castro.

         During the interview, in response to the suggestion that he was inside the apartment at the time of Castro's murder, the defendant stated that he was actually outside the apartment, arriving only after the incident occurred. The defendant told the police that after he received a call from Garcia requesting a ride, he drove to an apartment building, picked up Garcia and two other men, and dropped them off at Garcia's Lawrence apartment. During the drive to the Lawrence apartment, the men discussed the fact that Garcia had shot Castro. After remaining in Garcia's apartment for a period of time, the defendant drove Garcia and Encarnacion to Boston. The firearm used in the murder was buried before Garcia and Encarnacion left for the Dominican Republic. The day before the murder, the defendant had transported a bag of firearms to Garcia's Lawrence apartment. In exchange, the defendant received money and drugs. At the conclusion of the interview, LaBarge asked the defendant to sign the contemporaneous handwritten notes transcribing the conversation, but the defendant refused.


         1. Motion to suppress.

         The defendant filed three motions to suppress statements he made during the March 4, 2005, interview with the police. Insofar as relevant here, in 2013, the defendant filed a third motion to suppress, reasserting the voluntariness issue that had not been reached in any previous ruling. A judge (motion judge) denied this motion, ruling that "[a]ny understanding that [the] statements would be confidential and not used in court, was completely dissipated" after the defendant was given the Miranda warnings and voluntarily waived those rights. The defendant challenges only the motion judge's ruling denying the motion to suppress on the ground that his statement was voluntary.

         We recite the facts as found by the motion judge who "fully [i]ndorsed and incorporate[d]" the facts found by a different judge who had denied one of the defendant's earlier motions to suppress. We supplement the facts "with evidence in the record that is uncontroverted and that was implicitly credited by the motion judge." Commonwealth v. Melo, 472 Mass. 278, 286 (2015).

         The defendant met with the police at the jail where he was being held on unrelated charges. The officers were in plainclothes and did not have their credentials or firearms with them during the interview. The tone of the interview was conversational. Because the defendant did not always understand English, Cueva translated. However, the translation of LaBarge's statements was neither word for word nor always accurate. Cueva also communicated information in Spanish to the defendant without translating it into English for LaBarge. When LaBarge asked the defendant if he would consent to having the interview recorded, Cueva did not translate the defendant's response: "Okay, no problem . . . okay ... as long as it is not used in court . . . better if not used in court . . . whatever I say to you be confidential." Instead, Cueva replied to the defendant, "No, do not worry, " in Spanish.

         After this colloquy between the defendant and Cueva and prior to asking any questions about the murder, LaBarge inquired whether the defendant could read and write Spanish. When the defendant replied, "Yeah, perfect, " LaBarge provided him with Miranda warnings written in Spanish. LaBarge asked the defendant to read aloud each warning and say whether he understood it. The defendant did so and indicated that he understood the warnings.

         Following the Miranda warnings, LaBarge stated to the defendant, "We are going to use the information ... I have to be honest, my goal is not to, to save you and to help you out. My goal is to find the truth." Cueva translated this statement as follows: "Any information that you give us now, [LaBarge would] go to the court and they'd talk with the judge and the lawyer and to say that 'look, Cesar came, talked to me, gave me that and, we're going to try to help you, but he wouldn't give you er . . . er, you know." Near the end of the recorded portion of the interrogation, the defendant said in ...

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