Supreme Judicial Court of Massachusetts, Worcester
Heard: October 2, 2018.
Jury and Jurors. Interpreter. Due Process of Law, Presence of
defendant in courtroom, Fair trial. Search and Seizure,
Consent. Evidence, Hearsay, Chain of custody. Practice,
Criminal, Jury and jurors, Deliberation of jury, Examination
of jurors, Voir dire, Interpreter, Presence of defendant,
Public trial, Hearsay, Assistance of counsel, Capital case.
found and returned in the Superior Court Department on
November 18, 2005. A pretrial motion to suppress evidence was
heard by C. Jeffrey Kinder, J., and the case was tried before
Richard T. Tucker, J.
Pourinski for the defendant.
H. Lazar, Assistant District Attorney, for the Commonwealth.
Present (Sitting at Worcester): Gants, C.J., Lenk, Gaziano,
Lowy, Budd, Cypher, & Kafker, JJ.
summer of 2005, the victim was beaten and stabbed to death
near a set of railroad tracks in Dudley. In 2013, the
defendant was convicted by a Superior Court jury of murder in
the first degree for his role in the killing. In this direct
appeal, the defendant maintains that a new trial is required
because the judge did not declare a mistrial after members of
the jury were exposed to an extraneous influence, and that
the judge committed reversible error by partially excluding
the defendant from the subsequent voir dire of the
deliberating jury. In addition, the defendant argues that the
judge should have allowed his request for individual voir
dire on questions of ethnic bias, and abused his discretion
in certain evidentiary rulings. The defendant also asks us to
exercise our extraordinary power under G. L. c. 278, §
33E, to order a new trial or to reduce the degree of guilt.
affirm the conviction and decline to exercise our
extraordinary powers to grant relief under G. L. c. 278,
summarize the facts that the jury could have found, reserving
additional details for discussion of specific issues. See
Commonwealth v. Clemente, 452 Mass. 295, 299 (2008)
the evening of July 22, 2005, the victim and Jayser Cruz were
socializing at the victim's family home; the victim and
Cruz were family friends. At some point during the evening,
the victim's sister heard Cruz express an interest in a
knife that was lying on a table. The victim and Cruz then
left the house together. According to the victim's
sister, Cruz took the knife when they left.
that evening, the defendant was with Cruz and the victim at a
convenience store. They ran into two women, the
defendant's cousin, Maria Colon,  and one of her friends. Cruz
and the victim were drunk. The victim suggested that they all
smoke marijuana, and the group walked to the nearby railroad
tracks to do so. Maria heard Cruz tell the defendant that
Cruz recently had bought a new knife.
approximately fifteen minutes, Maria and her friend left to
go home. As they were walking away, Maria heard what sounded
like "skin ripping." When she looked back, she saw
the defendant throwing rocks at the victim; she described the
rocks as thin and estimated them to be approximately one inch
in width. Her friend saw the defendant throw four to six
rocks, which hit the victim in the back. The victim fell to
the ground, where he kept asking the defendant to
"stop." Cruz was laughing. When the defendant
requested a knife, Cruz handed him a backpack. Maria asked
the defendant to stop; he told her to leave, or "it
would happen to [her] as well." At that point, Maria and
her friend left the area. When they last saw him, the victim
was on the ground in a fetal position.
next morning, when the defendant came to Maria's house,
she saw "little dots" and
"splatter-marks" on his left leg. That afternoon,
she saw the defendant at a laundromat. When the defendant
left the laundromat, the "little dots" on his pants
were stained yellow, as though he had tried to wash them.
evening, the defendant's girlfriend and her friend picked
up the defendant and they all drove around. The defendant
told his girlfriend that he had killed the victim, and he
pointed toward something in the distance that "looked
like feet." He said that he had killed the victim
"for us," and he warned her not to tell anyone or
he would harm her siblings.
that evening, the defendant telephoned Maria and told her
that he had killed the victim. The defendant explained that
he had left the railroad tracks and was walking home, but
then he returned to the railroad tracks, where he saw the
victim getting up. The defendant picked up a large rock and
hit the victim in the head with it several times.
same day, the victim's body was discovered near the
railroad tracks. When a chemist from the State police crime
laboratory arrived at the scene, he saw the victim lying on
his back; his heavily-bruised face and clothing were covered
with "red-brown staining." A large rock, weighing
roughly fourteen pounds, with red-brown stains, was next to
the victim. The stain later was determined to be the
victim's blood. The medical examiner concluded that the
cause of death was a combination of blunt force trauma to the
head and two stab wounds to the body. Deoxyribonucleic acid
(DNA) testing indicated that the blood found on a pair of
jeans recovered from the defendant's house was the
November, 2005, a grand jury returned indictments, charging
the defendant, among other things, with murder in the first
degree. Thereafter, the defendant moved to suppress his
statements to police and the items seized during the two
searches of his house. Following an evidentiary hearing, a
Superior Court judge, who was not the trial judge, allowed
the motions to suppress in part and denied them in part. The
judge found that the defendant's statements were obtained
in violation of Miranda v. Arizona, 384 U.S. 436,
479 (1966), because the Spanish interpretation of the Miranda
warnings provided to the defendant were inadequate to apprise
him of his rights. The judge denied the motion to suppress
the evidence seized from the victim's house, after the
judge determined that the defendant's consent to the
first search had been validly obtained, and that police had
had probable cause to obtain a warrant for the second search.
March, 2013, the defendant was tried before a Superior Court
jury. The jury convicted him of murder in the first degree on
theories of deliberate premeditation and extreme cruelty or
atrocity. The defendant timely appealed.
defendant maintains that a new trial is required because the
judge did not declare a mistrial when several deliberating
jurors expressed concerns about their safety, and that the
judge erred by partially excluding the defendant from the
subsequent voir dire of the deliberating jury. The defendant
argues also that he was denied a fair trial because the judge
did not conduct individual voir dire of the members of the
venire with respect to questions of ethnic bias that defense
counsel had requested be posed. The defendant further asserts
error in the denial of his motion to suppress physical
evidence, as well as in the admission of out-of-court
statements, and he contends that his attorney was ineffective
in failing to make certain arguments at the hearing on the
motion to suppress. In addition, the defendant asks us to
exercise our extraordinary power under G. L. c. 278, §
33E, to order a new trial or to reduce the degree of guilt.
Dismissal of jurors during deliberations.
defendant argues that he was denied the right to a fair and
impartial jury when, after substantial evidence of bias was
brought to the judge's attention during deliberations,
the judge did not excuse the entire jury. Specifically, while
the jury were deliberating, the juror in seat number 15
(juror no. 15) notified a court officer that she was afraid
of the repercussions of the potential verdict in the case.
She feared that if the jury were to find the defendant
guilty, there could be possible retribution by gangs; if they
were to find him not guilty, someone else would be stabbed.
Juror no. 15 was fearful, in part, because the defendant had
heard her name. The other jurors "were all there"
during juror no. 15's conversation with the court
officer; juror no. 15 reported that other jurors also
previously expressed similar fears. The judge found that
juror no. 15 could not remain impartial and excused her.
juror no. 15 reported that others had expressed similar
"gang-related" fears, the judge conducted an
individual voir dire of each of the remaining members of the
jury. The juror in seat number 1 (juror no. 1)
also was excused, after stating that he had been
"watching to see if anyone is following me when I leave
here." The foreperson, who was in seat number 3 (juror
no. 3), reported that she had heard other jurors express
fears about the proximity of the crime to "the location
[in which] they lived" and "gang relation."
Juror no. 3 also said she had been "concerned," the
day before deliberations began, that people the defendant
might know would "go after us." On the first day of
deliberations, however, juror no. 3 reported that she was no
longer concerned. The judge found that juror no. 3
"indicated very clearly that she didn't have any
concerns now." Over the defendant's objection, juror
no. 3 was not excused. The judge told juror no. 3 not to
discuss the substance of the voir dire with anyone else.
nos. 1 and 15 were replaced with alternates, and the jury
were instructed to begin deliberations anew. The defendant
objected that the jury were not struck entirely; he argued
that the "fear running through the deliberations"
prevented the jury from remaining impartial. The motion was
denied. Approximately one hour later, the jurors returned a
verdict finding the defendant guilty.
appeal, the defendant contends that the extraneous influences
on the jury resulted in actual bias when the suggestion of
gang activity was introduced during the process of
deliberation, where no evidence of gang activity had been
presented at trial. The defendant argues that, as a result,
he was denied the right to a fair and impartial jury when the
judge declined to dismiss the entire jury.
12 of the Massachusetts Declaration of Rights and the Sixth
Amendment to the United States Constitution guarantee a
criminal defendant the right to a trial before an impartial
jury." Commonwealth v. Philbrook, 475 Mass. 20,
30 (2016). "The presence of even one partial juror
violates this right." Commonwealth v. Guisti,
434 Mass. 245, 251 (2001), £3.C., 449 Mass. 1018
(2007). "Prohibiting premature jury deliberations, and
extraneous influences on jurors" is one of the ways in
which to safeguard a defendant's right to trial before an
impartial jury. Philbrook, supra.
extraneous influences on jurors present a "serious
question of possible prejudice" (citation omitted).
Guisti, 434 Mass. at 251. See Philbrook,
475 Mass. at 30. "An extraneous matter is one that
involves information not part of the evidence at trial and
raises a serious question of possible prejudice"
(quotations and citation omitted). Guisti,
supra. See, e.g., Commonwealth v. Cuffie,
414 Mass. 632, 635 (1993) (juror made unauthorized visit to
crime scene); Commonwealth v. Fidler, 377 Mass. 192,
194 (1979) (during deliberations, juror stated information
not presented at trial). A defendant bears the burden of
demonstrating an extraneous influence by a preponderance of
the evidence. See Commonwealth v. Kincaid, 444 Mass.
381, 386-387 (2005), discussing Fidler, 377 Mass. at
case, the defendant was Hispanic and had "tattoos on
[his] hands"; the victim was Caucasian. The case, as it
was presented to the jury, did not involve allegations of
gang involvement, and the record does not indicate that any
evidence of gang affiliation was introduced at trial. The
Commonwealth's theory was that the defendant killed the
victim in order to be with the defendant's girlfriend.
Numerous jurors subsequently recalled juror no. 15's
comments. The conversation regarding gang involvement
included discussion of the location of the crime and the
"tattoos on the [defendant's] hands."
jurors began discussing gang-related concerns, juror no. 3,
for example, had not considered the defendant's tattoos
to be meaningful; "I never noticed that. I didn't
even think -- it never came into my . . . ." The
introduction of the concept of gang affiliation by juror no.
15, therefore, constituted "information not part of the
evidence at trial," and, as evidenced by the fear it
caused some jurors, "raises a serious question of
possible prejudice" (citation omitted). Guisti,
434 Mass. at 251.
not all extraneous jury discussion compromises a
defendant's right to a fair trial, and the presence of an
extraneous influence does not necessarily require a mistrial.
See Philbrook, 475 Mass. at 31. See also
Commonwealth v. Amirault, 404 Mass. 221, 232 (1989).
If a trial judge learns of such an influence, the judge must
determine whether the jurors remain impartial and, if not,
what remedy is required. See Philbrook,
Impartiality of remaining jurors.
judge has "discretion in addressing issues of extraneous
influence on jurors discovered during trial."
Commonwealth v. Trapp, 423 Mass. 356, 362, cert,
denied, 519 U.S. 1045 (1996). Because the "determination
of a juror's impartiality is essentially one of
credibility, and therefore largely one of demeanor, [a
reviewing] court give[s] a trial judge's determination of
impartiality great deference" (quotations omitted).
Philbrook, 475 Mass. at 30, quoting Commonwealth
v. Alicea, 464 Mass. 837, 849 (2013). A reviewing court
"will not disturb a judge's findings of
impartiality," or a judge's finding that a juror is
unbiased, "absent a clear showing of an abuse of
discretion or that the finding was clearly erroneous."
See Commonwealth v. Sleeper, 435 Mass. 581, 587
(2002); Commonwealth v. McCowen, 458 Mass. 461,
judge conducts individual voir dire of each juror, excuses
all influenced jurors, and determines that the remaining
jurors are impartial, a defendant's right to an impartial
jury has not been violated. See Philbrook, 475 Mass.
at 31 (remaining jurors impartial after juror excused for
deciding case prematurely); Commonwealth v.
Maldonado, 429 Mass. 502, 506-507 (1999) (remaining
jurors impartial after juror excused for fear of gang
retribution); Commonwealth v. Kamara, 422 Mass. 614,
616-618 & n.l (1996) (remaining jurors impartial after
juror excused for telling other jurors defendant was member
of gang). See also Commonwealth v. Stanley, 363
Mass. 102, 104-105 (1973) (jurors impartial despite reading
newspaper in deliberation room).
Kamara, 422 Mass. at 616, one juror told the others
that she knew the defendant, that the defendant was a member
of a gang, and that she feared for her safety. The trial
judge excused the juror and questioned each remaining juror.
Id. at 617. The judge found that, although they had
heard the extraneous information, the remaining jurors were
able to be fair and impartial. Id. at 617-618. We
concluded that such a determination was not an abuse of
discretion. Id. at 620.
juror no. 15 did not claim to know the defendant, or to know
that he was a member of a gang. When she expressed fear of
the defendant, the judge appropriately dismissed her,
conducted an extensive voir dire of the remaining jurors, and
dismissed an additional juror out of an "abundance of
caution." Both counsel agreed to the dismissals of juror
nos. 15 and 1. The other jurors stated individually that they
had no similar concerns. The judge appropriately instructed
the jury that they were to disregard "any personal likes
or dislikes, opinions, [or] prejudices," and were not to
base their verdict on "speculation, surmise[, ] or
found that the remaining jurors were unafraid and could
remain impartial, the judge was not obligated to dismiss
them, and there was no abuse of discretion in his decision
not to dismiss the entire jury. "We are not prepared to
substitute our judgment for that of the trial judge who heard
the evidence, carefully interviewed the jurors individually,
and made a finding that each juror could do his or her job
unaffected by whatever extraneous information had been
injected into the jury room." Kamara, 422 Mass.
Lack of translators.
defendant's native language was Spanish. Throughout the
trial, the defendant made use of two Spanish interpreters,
who spoke to him through a headset. During the voir dire
concerning the extraneous influence created by juror no. 15,
the defendant was not provided with a translator. The
defendant argues that he thereby was denied the right to a
juror no. 15 had been dismissed, and before any of the other
deliberating jurors had been interviewed by the judge,
defense counsel requested that the defendant be present
during the voir dire of the remaining jurors. The judge,
however, was concerned that the jurors would not speak
candidly about their fear of the defendant if they knew he
was listening. Prior to the individual voir dire of the
deliberating jurors, the following exchange occurred:
Defense counsel: "I think my client . . . [w]ell, I
think he needs to be here."
The judge: "During the voir dire?"
Defense counsel: "You don't want him here during . .
The judge: "Yes; he can be here during the voir dire. I
don't know that I want him to hear what's said,
Defense counsel: "No -- I have no problem with the
court's direction that if anybody is excused, it's
for personal reasons."
The judge: "I do not . . . want him to learn that one
juror has left because she's fearful of him, because even
if it's just a stare ...