Heard: November 9, 2018.
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.
H. Mirsky (Joanne T. Petito also present) for the defendant.
Catherine Langevin Semel, Assistant District Attorney, for
Present: Gants, C.J., Gaziano, Budd, & Cypher, JJ.
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.
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.
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.
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.
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.
Grand jury presentment.
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
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.
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
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 ...