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Commonwealth v. Colon

Supreme Judicial Court of Massachusetts, Essex

October 22, 2019

COMMONWEALTH
v.
DENNIS COLON.

          Heard: February 8, 2019.

          Indictments found and returned in the Superior Court Department on May 27, 2010. The cases were tried before Richard E. Welch, III, J., and a motion for a new trial, filed on October 24, 2014, was heard by him.

          James W. Rosseel for the defendant.

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

          Present: Gants, C.J., Lenk, Gaziano, Lowy, & Kafker, JJ.

          GAZIANO, J.

         In June 2012, a Superior Court jury convicted the defendant of murder in the first degree on a theory of felony-murder in connection with the May 2009 shooting death of Juan Caba (victim), [1] The defendant's motion for a new trial was denied after an evidentiary hearing. The matter is before this court on the defendant's direct appeal, consolidated with his appeal from the denial of his motion for a new trial.

         The defendant argues that a new trial is necessary because of the ineffective assistance of his trial counsel. He contends that counsel failed to make use of evidence that the defendant had engaged in a telephone conversation with his girlfriend, while in police custody and using a police officer's cellular telephone, to argue that the defendant's statements to police the following morning were not voluntarily made. Relatedly, the defendant also contends that counsel erred in not using recordings of the defendant's custodial interviews on the evening of his arrest in challenging the voluntariness of the inculpatory statements he made the following morning. In addition, the defendant argues that trial counsel provided ineffective assistance because he did not properly request a DiGiambattista instruction. See Commonwealth v. DiGiambattista, 442 Mass. 423, 447-448 (2004). The defendant argues that the combination of errors likely influenced the jury's decision, and that, accordingly, a new trial is required. He also seeks relief under G. L. c. 278, § 33E.

         For the reasons that follow, we affirm the defendant's convictions and the denial of his motion for a new trial, and we decline to grant relief under G. L. c. 278, § 33E.

         1. Background.[2]

         a. The shooting.

         At approximately 4:30 A.M. on May 22, 2009, intruders broke into the victim's house while the victim and his girlfriend, Tori, [3] were asleep. Tori awoke to find the victim sitting up in bed and two men standing at the edge of the bed, pointing guns at her and the victim. The men wore sunglasses and hats that obscured their faces. Although Tori did not recognize either man, she thought that one of them might have been a man she knew as "PS," to whom the victim twice had sold marijuana. Tori believed the other man was approximately five feet, six inches tall, roughly the same height as the defendant.

         Tori screamed, "Please, don't shoot, don't shoot." The victim could not see what was happening, as he was blind, and began waving his hands. A gun went off, and the victim fell on top of Tori. The men left. Tori testified that she saw the two men for a total of approximately five minutes.

         A projectile from a .380 semiautomatic weapon had entered the victim's head on the left side and fragmented in at least two different directions. The victim was transported to a hospital, where he was pronounced dead at 11:25 £.M. The cause of death was a single gunshot wound to the head. A portion of the bullet passed through the victim's head and into Tori's chin, breaking her jaw. Two permanent metal plates had to be installed in Tori's jaw to hold the jaw together.

         b. Interrogations.

         On June 22, 2009, while Lawrence police were investigating a separate incident involving a burglary, they encountered the defendant and found a Beretta firearm on his person.[4] The defendant was arrested for possession of a firearm without a license, and was transported to the Lawrence police station.

         That evening, the defendant was interrogated at the Lawrence police station in two separate interviews that took place approximately one hour apart. He said nothing inculpatory related to this offense during these two interviews, and no testimony was introduced at trial concerning the defendant's statements on the evening of his arrest.

         During the first interview, the defendant asked detectives if he "could see" his girlfriend, Giana.[5] At that point, Giana was at the police station in a different room. Giana, who was four months pregnant with twins, had come to the police station voluntarily to provide police information that she thought would help the defendant, concerning the gun that police had found on his person. In response to the defendant's request, one detective said, "[A]ctually she's not going to be able to come down. All right? But I'll let you call her. All right?"

         According to a police report, while the defendant was in the booking room after his first interview, a detective asked a fellow officer to tell Giana, who was upstairs, to call the officer's cellular telephone. When Giana called, the officer handed the telephone to the defendant, who spoke with Giana. Subsequently, the defendant spoke with police for ten minutes, and the interview then concluded at 5:41 P..M.

         The following day, on June 23, 2009, while the defendant was being held in a cell at the Lawrence Division of the District Court Department, he requested to speak with a police officer whom he recognized. At approximately 9:30 A.M., the defendant was interviewed by two officers. According to police testimony, the defendant waived his Miranda rights, consented to the interview being recorded, and waived his right to prompt arraignment. The defendant signed forms associated with each of these waivers, as well as his consent to the recording. The period during the issuance of the Miranda warnings and the receipt of the defendant's waivers, however, was not recorded. In this interview, the defendant told police that he had participated in the break-in that led to the victim's death. The defendant admitted to having broken into the victim's apartment, along with individuals he identified as "Limbe," "Smokey," "PS," and "Dezi," with the intent to steal money and marijuana. The defendant said that he saw a dog in the apartment;[6] as he was afraid of dogs, he stayed in the hallway to serve as the lookout. He concluded by saying that someone other than he had fired a shot inside the apartment from a .380 weapon.

         In January 2011, the defendant's first attorney[7] moved to suppress the defendant's inculpatory statement to police.[8] The motion was denied after an evidentiary hearing. In his written findings of fact and rulings of law, the motion judge determined that the defendant had been questioned by police at the Lawrence police headquarters on June 22, 2009, shortly after his arrest, for approximately thirty to forty-five minutes. The judge found that, the following day, the defendant initiated contact with police, while being held in the cell block area of the District Court in Lawrence. An officer read the defendant Miranda warnings before turning on a tape recorder. The defendant was "eager" to speak with police. The officer described him as "clear-headed, and not under the influence of alcohol, drugs, or mental illness." The judge determined that the emotion the defendant displayed was "appropriate to the situation," and concluded that the defendant's "statements were voluntary and preceded by adequate Miranda warnings."[9]

         The defendant's trial counsel filed a motion for reconsideration, which was denied. After trial began about one week later, counsel moved in limine to exclude the defendant's statement of June 23, 2009. The trial judge deferred to the motion judge's ruling and denied the motion.

         c. Trial.

         Before the jury were sworn, trial counsel moved to exclude testimony by the defendant's girlfriend, Giana, with respect to statements she made at the Lawrence police station on June 22, 2009. The Commonwealth had intended to call Giana as a corroborating witness, and possibly as a witness to show intent for the underlying felony. Defense counsel explained that Giana sought to claim a privilege under the Fifth Amendment to the United States Constitution, because information that she gave police that inculpated the defendant purportedly was false. Counsel also moved to exclude Giana's statements on the ground of asserted police coercion.

         The judge conducted a voir dire of Giana. Giana said that, while she was being questioned, a police officer threatened her by telling her that if she did not inculpate the defendant, she would go to prison and give birth there, and that she would never see her twins again. Giana's son, who had come to the police station separately, was brought into a room where he met briefly with his mother, who was crying.

         The judge determined that "the police may have played upon [Giana's] emotions -- to a certain extent -- but I do not find that all of [Giana's] testimony is credible." The judge explained that Giana had provided a "demonstratively false" statement that she had been given Miranda warnings only as she was walking out the door. The judge also noted that the police report describing Giana's interview "doesn't even go into a fair amount of what she claims was asked her at the police station." The judge denied the motion to exclude Giana's statements. He observed that, "plainly, the defense is entitled to bring these matters up to the jury," and left "it to the Commonwealth as to whether they want to open up this can of worms before the jury."[10] Neither the Commonwealth nor the defense ultimately called Giana to testify at trial. As a result, any information inculpatory to the defendant that Giana might have provided to police was not presented to the jury.

         The defendant's statements from the morning of June 23, 2009, were the heart of the Commonwealth's case. In addition, the Commonwealth presented testimony of an inmate, Alvin Rivera, who testified against the defendant pursuant to a cooperation agreement. Rivera's testimony ...


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