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Commonwealth v. Colon

Supreme Judicial Court of Massachusetts, Worcester

May 3, 2019

COMMONWEALTH
v.
JOSE COLON.

          Heard: October 2, 2018.

         Homicide. 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.

         Indictment 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.

          Elaine Pourinski for the defendant.

          Ellyn H. Lazar, Assistant District Attorney, for the Commonwealth.

          Present (Sitting at Worcester): Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          LENK, J.

         In the 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.

         We affirm the conviction and decline to exercise our extraordinary powers to grant relief under G. L. c. 278, § 33E.

         1. Facts.

         We 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) .

         Late on 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.

         Later 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, [1] 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.

         After 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.

         The 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.

         That 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.

         Later 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.

         The 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 victim's.

         2. Prior proceedings.

         In 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.

         In 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.

         3. Discussion.

         The 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.

         a. Dismissal of jurors during deliberations.

         The 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.

         Because 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.[2] 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.

         Juror 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.

         On 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.

         i. Extraneous influence.

         "Article 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.

         Accordingly, 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 201.

         In this 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."

         Until 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.

         Nonetheless, 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, supra.

         ii. Impartiality of remaining jurors.

         A trial 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, 493-494 (2010).

         Where a 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).

         In 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.

         Here, 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 conjecture."[3]

         Having 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. at 620.

         b. Lack of translators.

         The 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 public trial.[4]

         After 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, though."
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 ...

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