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.
W. Rosseel for the defendant.
Catherine Langevin Semel, Assistant District Attorney, for
Present: Gants, C.J., Lenk, Gaziano, Lowy, & Kafker, JJ.
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),  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.
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.
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.
approximately 4:30 A.M. on May 22, 2009, intruders broke into
the victim's house while the victim and his girlfriend,
Tori,  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.
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
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.
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. The defendant
was arrested for possession of a firearm without a license,
and was transported to the Lawrence police station.
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.
the first interview, the defendant asked detectives if he
"could see" his girlfriend, Giana. 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?"
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.
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; 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.
January 2011, the defendant's first
attorney moved to suppress the defendant's
inculpatory statement to police. 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."
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
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
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.
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." 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
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 ...