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Commonwealth v. Castano

Supreme Judicial Court of Massachusetts, Essex

October 6, 2017

COMMONWEALTH
v.
FRANKLIN CASTANO

          Heard: April 7, 2017.

         Indictments found and returned in the Superior Court Department on March 24, 2014.

         A 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.

          Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Lenk, Gaziano, Budd, & Cypher, JJ.

          CYPHER, J.

         A 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)[1] 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.

         Background.

         On the 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.

         The 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.

         1. The motion to suppress.

         The 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.

         The 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.

         The 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.

         The 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 environs.

         When 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.

         The 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.

         2. The evidence at trial.

         We summarize the facts at trial as the jury could have found them.

         a. Communication with Garcia.

         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."

         On the 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.

         The 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[2] of a face with X's for eyes, [3] 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.

         Garcia 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 ...


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