Heard: April 7, 2017.
found and returned in the Superior Court Department on March
pretrial motion to suppress evidence was heard by Timothy Q.
Feeley, J., and the cases were tried before Mary K. Ames, J.
Elizabeth Caddick for the defendant.
H. Slingerland, Assistant District Attorney, for the
Present: Gants, C.J., Lenk, Gaziano, Budd, & Cypher, JJ.
Superior Court jury convicted the defendant of murder in the
first degree on a theory of deliberate premeditation, G. L.
c. 265, § 1, and of unlawful possession of a firearm, G.
L. c. 269, § 10 (h) The defendant advances five arguments
on appeal: (1) his statements to police about the location of
the gun involved in the case should have been suppressed; (2)
the trial judge improperly admitted hearsay statements as
motive evidence; (3) the Commonwealth's ballistics expert
was not competent to testify about the trajectory of the shot
that killed the victim; (4) the defendant was deprived of his
right to counsel because his relationship with his attorney
had deteriorated; and (5) the interests of justice require
this court to exercise its power, under G. L. c. 278, §
33E, to reduce the conviction to murder in the second degree.
For the reasons discussed below, we affirm the convictions
and decline to exercise our authority under § 33E.
morning of February 20, 2014, the defendant, accompanied by
two friends, walked into the Lynn police station. One of the
friends, Alvaro Garcia, informed police that the
defendant's girl friend was dead and that the defendant
had killed her. The defendant was placed under arrest, and
police responded to the Peabody apartment that the defendant
shared with his girl friend. There, they found her dead with
a gunshot wound to the head. Two spent casings were found
nearby, but no firearm was observed or recovered.
events immediately following the defendant's arrival at
the police station were the subject of a motion to suppress,
and we first summarize those facts as found by the motion
judge. We then summarize the evidence at trial, with
additional facts reserved for later discussion.
The motion to suppress.
motion judge found the following facts, which are not in
dispute. The defendant, who is not fluent in English, was
booked at the Lynn police station with the assistance of
Officer Francisco Gomez, who is bilingual. Throughout the
course of the day, Gomez administered Miranda rights to the
defendant, in Spanish, at least four times, including at the
Lynn police station and at the Peabody police station. Soon
after the first provision of Miranda rights, the defendant
invoked his right to counsel.
questioning did not immediately cease. The defendant was
subjected to two sets of questions at the Peabody police
station without ever having the opportunity to speak to a
lawyer. Both sets of postinvocation questions concerned the
disposal of the firearm that police, at that time, believed
the defendant had used to kill the victim.
first set of questions came from Peabody police Officer Mark
Saia, who asked the defendant where "the gun" was.
The defendant replied that he threw it out of his motor
vehicle window near the apartment complex where the killing
occurred. Saia told the defendant that it was important to
locate the gun because of that area's proximity to places
where children might be present. The officer asked the
defendant for more detail about where he had disposed of the
gun. The defendant said he had turned to the left out of the
apartment complex and threw the weapon out the vehicle window
near a dry cleaner. Saia communicated that information to
other officers at the scene. They did not find the gun.
second set of questions came from Peabody police Detective
Stephanie Lane. Lane had responded to the apartment complex
on the morning of the events in question. She was familiar
with the area described by the defendant. She was aware that
both a church (with a school and day care facility) and a
preschool were located nearby. She also was aware that the
apartment complex itself was home to a number of children.
Lane further knew that police had not recovered the weapon
from the apartment or from their subsequent search of its
Lane returned to the station, she spoke to the defendant in
the holding cell area and essentially repeated the questions
asked by Saia. The defendant provided the same information
and described the firearm as silver in color. Lane asked if
the defendant would be willing to accompany her and other
officers to help find the firearm. He agreed to cooperate.
Police placed the defendant in the back of a cruiser and
drove to the area adjacent to the apartment complex. The
defendant pointed out the direction in which he had thrown
the firearm. Still, police never recovered the weapon.
motion judge ruled that the defendant's responses to
these two sets of inquiries were admissible at trial under
the public safety exception to the Miranda exclusionary rule,
as first established in New York v.
Quarles, 467 U.S. 649, 655-656 (1984). He concluded
that (1) the Quarles exception extends to
postinvocation questioning and (2) it applied here because
officers had an objectively reasonable need to protect the
public from danger when they asked the defendant about the
location of the gun.
The evidence at trial.
summarize the facts at trial as the jury could have found
Communication with Garcia.
a friend of the defendant for several years, testified about
communication he had had with the defendant on the night of
the killing and the morning after. Garcia also knew the
victim, having nicknamed her "Explosive" because
she was "the kind of person you [could] meet and connect
[with] right away" and "[a]lways happy."
night of February 19, 2014, Garcia was working at his job for
a cleaning company. Around 10:30 £.M., the defendant
began posting comments directed at Garcia on a social
networking Web site, one of which struck Garcia as unusual.
As a result, Garcia telephoned the defendant, who said only
that he would call Garcia later. About an hour later, the
defendant called Garcia and asked him to come by the
defendant's apartment because the defendant needed to
talk to him. The defendant sounded "weird" and
"nervous." Garcia tentatively agreed to come by the
apartment, or at least call the defendant, when his shift
ended at 2 A.M. on February 20.
defendant subsequently sent Garcia another message, through
the messaging application WhatsApp, asking if he had finished
his shift yet. Garcia asked why the defendant wanted him to
come by the apartment. The defendant replied that he had
"problems" or "a thing on [his] hands."
The defendant also sent an emoji of a face with X's for
eyes,  and the word "Explosive." At
that point, Garcia knew that "something was happening,
" and he told the defendant that he would call the
defendant after work.
sent the defendant a text message when he was leaving work
around 2 A.M., and again when he reached his home around 2:30
A.M., but the defendant did not respond to either. Garcia did
not hear from the defendant again until around 7 A.M., when
the defendant called on the telephone while Garcia was
working at his second job. The defendant again told Garcia
that he had "problems" -- "something
serious" or "something big" -- and that he