Heard: January 10, 2017.
found and returned in the Superior Court Department on
December 12, 2008.
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
Present: Gants, C.J., Lenk, Hines, & Gaziano, JJ.
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.
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
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.
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.
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.
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.
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.
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.
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.
August, 2004, the defendant initiated a conversation with his
probation officer,  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. 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."
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. 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.
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.
Motion to suppress.
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.
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).
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.
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.
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 ...