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Commonwealth v. Hernandez

Supreme Judicial Court of Massachusetts, Essex

January 9, 2019


          Heard: November 9, 2018.

         Indictment found and returned in the Superior Court Department on February 3, 2010. A motion to dismiss was heard by Timothy Q. Feeley, J., the case was tried before David A. Lowy, J., and a motion for a new trial, filed on July 27, 2015, was heard by Timothy Q. Feeley, J.

          David H. Mirsky (Joanne T. Petito also present) for the defendant.

          Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth.

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

          BUDD, J.

         On the evening of June 7, 2009, the defendant, Jose Hernandez, shot and killed Roberto Plaza as Plaza sat in his motor vehicle. The defendant was convicted of murder in the first degree on a theory of deliberate premeditation in connection with the shooting death. We consolidated his direct appeal with his appeal from the denial of his motion for a new trial. After full consideration of the trial record and the defendant's arguments, we affirm the defendant's conviction and the denial of his motion for a new trial, and we decline to grant extraordinary relief pursuant to G. L. c. 278, § 33E.


         We summarize the facts as the jury could have found them, reserving certain details for discussion infra. On the evening of June 7, 2009, the defendant and his friend, Jorge Santiago, were drinking beer and using heroin at the defendant's home in Lawrence. As the defendant was inspecting a firearm that Santiago showed him, the victim knocked at the door, announced himself, and said he wanted to purchase narcotics. Without opening the door, the defendant told the victim to "[g]et away" and to "[c]all [his] workers." The victim persisted, knocking again and stating that the defendant's workers "do not answer the phones." The defendant opened the door and began to argue with the victim.

         The victim eventually walked back to his motor vehicle, which was parked in front of the defendant's home, and started the engine. The defendant walked up to the passenger side of the motor vehicle, where the argument continued. The defendant then pulled the handgun from his pocket and fired it into the vehicle, and then walked away. The victim's motor vehicle thereafter proceeded a short way down the street, left the roadway, knocked down a fence, and crashed into a couple motor vehicles parked in a nearby lot. Neighbors found the victim breathing but unable to respond to questions. He died soon after from a gunshot wound to the chest.

         In the meantime, after the shooting, the defendant hid the firearm in a tree stump located in the backyard of a neighboring home and then contacted a friend, Miguel Sierra, who retrieved (and later sold) the firearm and provided the defendant with travel arrangements to Connecticut the next day. In November 2009, the defendant was located and arrested in Connecticut.


         On appeal, the defendant challenges the denial of his motion to dismiss the indictment and certain evidentiary rulings by the trial judge. He also appeals from the denial of his motion for a new trial based on newly discovered and improperly withheld evidence. Finally, the defendant asks this court to reduce the verdict to manslaughter pursuant to our authority under G. L. c. 278, § 33E.

         1. Grand jury presentment.

         Three days after the victim was killed, a confidential informant advised police that an individual claimed that he was "putting a hit out" on the victim because the victim previously had failed to pay for heroin that the individual had provided to the victim. The confidential informant further reported that the day after the shooting, when the informant asked the individual about the "hit," the individual told the informant, "[D]on't worry about [it], I already had it taken care of."

         The defendant argues that the information from the confidential informant should have been presented to the grand jury as exculpatory evidence that raised a "fundamental doubt as to the credibility of the prosecution's entire case" against the defendant, and that therefore his motion to dismiss the indictment was improperly denied. We disagree.

         It is well settled that "[p]rosecutors are not required in every instance to reveal all exculpatory evidence to a grand jury." Commonwealth v. McGahee, 393 Mass. 743, 746 (1985), citing Commonwealth v. O'Dell, 392 Mass. 445, 447 (1985). "It is only when the prosecutor possesses exculpatory evidence that would greatly undermine either the credibility of an important witness or evidence likely to affect the grand jury's decision, or withholds exculpatory evidence causing the presentation to be 'so seriously tainted,' that the prosecutor must present such evidence to the grand jury." Commonwealth v. Wilcox, 437 Mass. 33, 37 (2002), quoting 0'Dell, supra.

         The defendant has made no such showing here. The informant's uncorroborated statement about another individual putting a "hit" out on the victim did not affect the credibility of the testimony of any of the grand jury witnesses. This includes Santiago, who testified before the grand jury about the argument between the defendant and the victim just prior to the shooting, and further testified that he witnessed the defendant point the firearm at the motor vehicle where the victim was sitting, and shoot. Given this evidence, the omission of the informant's statement cannot be said ...

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