Commonwealth v. Rivera ( 2020 )

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18-P-1584 Appeals Court
COMMONWEALTH vs. BENJAMIN RIVERA.
No. 18-P-1584.
Hampden. September 17, 2019. - April 9, 2020.
Present: Vuono, Meade, & Sullivan, JJ.
Homicide. Firearms. Self-Defense. Practice, Criminal,
Admissions and confessions, Instructions to jury.
Constitutional Law, Admissions and confessions, Self-
incrimination. Evidence, Admissions and confessions, Self-
defense, Consciousness of guilt.
Indictments found and returned in the Superior Court
Department on August 7, 2013.
The cases were tried before Daniel A. Ford, J.
Robert F. Hennessy for the defendant.
Katherine E. McMahon, Assistant District Attorney, for the
Commonwealth.
VUONO, J. Following a jury trial in the Superior Court,
the defendant was convicted of murder in the second degree
stemming from the shooting death of Angel Llorens on May 22,
2
2013, in Springfield.1 He also was convicted of unlawful
possession of the firearm and ammunition that he used during the
shooting. At trial, the defendant did not dispute that he had
shot Llorens. He testified on his own behalf and claimed that
he was acting in self-defense. However, when the defendant was
interviewed by the police about two weeks after the shooting, he
said that he was not present when Llorens was shot but, rather,
was at home with his step-father. In his opening statement and
closing argument, the prosecutor commented on the discrepancy
between the defendant's testimony at trial and the statement he
gave to the police. The defendant claims that these remarks, to
which there was no objection, violated his right to remain
silent. He also claims error in the admission of portions of
his interview that constitute accusatory questions and denials
thereto, and in the judge's instructions on reasonable
provocation and sudden combat. Lastly, the defendant argues
that the combination of these alleged errors warrants reversal
of his convictions. We affirm.
1. Background. a. The Commonwealth's case-in-chief. The
Commonwealth presented evidence from which the jury could have
found the following facts. On the evening of May 22, 2013, the
defendant was with a group of friends and acquaintances at the
1 The indictment charged murder in the first degree.
3
home of Lee Hutchins, Jr., at 53 Daytona Street in Springfield.
Some of the persons at the gathering were members of a local
"car club" that repaired and raced automobiles. Llorens lived
close by and was a member of a rival car club. Shortly before
10 P.M., Llorens came home and parked his car in front of his
building. The vehicle had a sticker bearing the rival club's
logo. The sticker caught the attention of some of Hutchins's
friends, one or two of whom decided to play a prank on Llorens
by stealing the sticker. Llorens, who apparently observed the
theft from inside his home, came outside and confronted the
group. Llorens was angry. There was evidence that Llorens said
he was going to get a gun and that he briefly returned to his
apartment. When the conflict began, Hutchins told the group not
to worry because he had a gun. After Hutchins retrieved the
gun, the defendant took it from him and put it "on his hip."
Thereafter, Hutchins and one other person, Abinel Zayas,
approached Llorens and offered to pay for the sticker. Llorens
agreed to be compensated, and as Hutchins began to walk away to
retrieve his wallet, the defendant approached with the gun
drawn. Llorens, who was now smoking a cigarette, saw the
defendant and said, "I'm not scared." The defendant then shot
Llorens four times in rapid succession. Immediately thereafter,
the defendant departed in a car driven by his stepfather, who
had been "hang[ing] out" with the group at Hutchins's house. As
4
he was leaving, the defendant told Hutchins's father, who had
come out of the house upon hearing the shots, "[Y]ou didn't see
nothing, you don't know nothing." Hutchins, who testified
pursuant to a cooperation agreement, was distraught after the
shooting. He claimed that the problem over the sticker had been
"squashed" and that the defendant shot Llorens "for nothing."
The police arrived quickly and transported Llorens to the
hospital, where he died from his wounds. The ensuing
investigation revealed that Llorens did not have a firearm when
he was shot. In addition, the Commonwealth's forensic evidence
established that although Llorens had a knife in his back
pocket, it had not been removed during the incident.
About two weeks after the shooting, the defendant
voluntarily went to the Springfield police station, where he was
arrested. After being read his Miranda rights, the defendant
agreed to speak to Detectives Kevin Lee and Anthony Pioggia. A
redacted video recording of the defendant's interview was played
for the jury and admitted in evidence.2 The detectives did not
initially inform the defendant that he was charged with
Llorens's murder. The interview began with a discussion about
the defendant's hobbies. The defendant explained that although
he liked street racing, he was not a member of a car club and
2 The record provided to this court contains only a
transcript of the recording that was played for the jury.
5
did not frequent the neighborhood (Daytona Street and Belmont
Avenue) where the shooting occurred. He said he did not know
Hutchins and had no reason to be in Hutchins's neighborhood,
claiming, "I don't . . . go up there. I don't got no business
up there. No family, no friends."
About midway through the interview, in response to the
defendant's inquiry as to why he was being asked these
questions, Detective Pioggia told the defendant that he was
being charged with "killing a kid on Belmont and Hollywood."
The defendant responded, "Hell, no, that's crazy. . . . No,
that is crazy."3 The interview continued and the defendant
answered more questions about racing cars and whether he knew
certain persons. A short time later, Detective Pioggia again
stated that the defendant was charged with the "killing of this
kid on Belmont Avenue," and the defendant again responded,
"Crazy." The interview then focused on the defendant's
whereabouts on the night of the murder. During this portion of
the interview, the defendant stated: "I just don't know where
you all get me killing somebody." Detective Pioggia referred to
the charge again and said: "Well, you have been identified as
3 The defendant also said: "[K]illing someone, that's too
much, man. . . . I thought we was talking about street racing,
breaking laws or whatever."
6
killing -- as killing this kid." This time, the defendant
simply shook his head in response.
Thereafter, the defendant was shown a number of photographs
of persons who had been at Hutchins's house on the night of the
shooting. When the detectives showed the defendant photographs
of Llorens and Hutchins, the defendant claimed that he had never
seen either individual and wrote "never seen before" across the
bottom of both photographs. The defendant then acknowledged
that he had heard about the murder on the night that it happened
and said he had been home on Armory Street with his stepfather.
According to the defendant, the two had been drinking, and
therefore, he could not remember who told him about the
shooting. At one point, the defendant said he was told
"somebody got shot," not "killed." After additional
questioning, the defendant terminated the interview.
b. The defense. As noted, the defendant proceeded on a
theory of self-defense. During his direct testimony, he
acknowledged that he lied to the police when he was questioned
following his arrest because he was "scared" and "ignorant."4
According to the defendant, when Hutchins approached Llorens in
an attempt to settle the dispute, Llorens reached behind his
4 The defendant stated: "Well, I was scared. Being
ignorant. I guess I thought I would get away with something. I
was being selfish."
7
back. The defendant testified that he believed Llorens had a
gun. Hutchins and the defendant talked to Llorens and offered
to pay for the sticker, but Llorens was not listening. The
defendant then told everyone to return to the porch and told
Llorens not to follow them. By this time, the defendant had the
gun in his hand. Llorens lunged, and the defendant "let out a
shot." Llorens kept coming toward the defendant and said he was
not scared. Fearing for his life and the lives of the others
present, the defendant then shot Llorens three more times.5
2. Discussion. a. The defendant's right to remain
silent. In his opening statement, the prosecutor referred to
the defendant's interview and stated, among other things, "You
will not hear the word self-defense come from his mouth during
that meeting."6 Later, in closing argument, the prosecutor drew
attention to the variance between the defendant's statements to
the police and his testimony at trial. At one point, the
prosecutor said: "He doesn't tell them, hey, you got it all
wrong, this guy was crazy, I had to do it. No, he tries to get
The defendant also called as witnesses two of the persons
5
who were present on the porch at 53 Daytona at the time of the
shooting -- his stepuncle, Ramon Arocho, and his stepfather,
Celido Nunez.
The theory of the defense was known prior to the
6
commencement of the trial.
8
away with something first."7 The defendant argues that the
prosecutor's references to the defendant's failure to tell the
police that he shot Llorens in self-defense violated his right
to remain silent. Because there was no objection to the
admission of the challenged remarks, we review the defendant's
claim under the substantial risk of a miscarriage of justice
standard. Commonwealth v. Womack, 457 Mass. 268, 273 (2010).
In Doyle v. Ohio, 426 U.S. 610 (1976), the United States
Supreme Court held that a defendant's silence after the police
have given the warnings mandated by Miranda v. Arizona, 384 U.S.
436 (1966), may not be used against that defendant. Doyle, 426
U.S. at 619. "[T]o do so would 'penalize' the invocation of the
right to silence." Commonwealth v. Waite, 422 Mass. 792, 797
(1996) (applying Doyle). However, when a defendant waives his
right to remain silent after being apprised of his Miranda
rights and agrees to speak with police, it is permissible for a
prosecutor to comment on omissions from the defendant's post-
7 The prosecutor further stated:
"And you saw his reaction when they tell him you're charged
with murder. Cool, calm, collected. He doesn't seem to be
easily frazzled or phased. Oh, that's crazy. No, not me.
Have you ever been down to Belmont and Daytona? No, I
don't go down there. No, no, that's crazy. Do you know
this man? And watch when they show him the picture of Lee
Hutchins and Angel Llorens. That picture is in front of
him for a millisecond. Nope, don't know him. It just
rolls off the tongue easily."
9
Miranda statements. See Womack, 457 Mass. at 277-278 (no Doyle
violation where defendant had waived Miranda rights and
prosecutor argued that failure to disclose to police his alibi
offered at trial was evidence that alibi was false);
Commonwealth v. Sosa, 79 Mass. App. Ct. 106, 113 (2011) ("The
defendant ha[s] a constitutional right to silence, not a right
to tell a story and then avoid explaining crucial omissions by
stating they were an exercise of the right to silence"). See
also Commonwealth v. Snell, 428 Mass. 766, 772-773, cert.
denied, 527 U.S. 1010 (1999) (right to remain silent not
violated where prosecutor commented in opening statement that,
when police informed defendant of wife's death, he "said
nothing" other than that he was out of State); Commonwealth v.
Lavalley, 410 Mass. 641, 648-649 (1991) (defendant's failure to
tell police in postarrest statement that he was with rape victim
and had intercourse with her constituted false statement, and
prosecutorial comment thereon was permissible at rape trial
where defense was consent); Commonwealth v. Donovan, 58 Mass.
App. Ct. 631, 639 (2003) (not improper for prosecutor to comment
on variance between postarrest statements and trial defense,
including failure to mention to police that sexual encounter was
consensual where defense at trial was consent).
Here, as in the cases cited supra, the defendant did not
remain silent. After waiving his Miranda rights, the defendant
10
spoke voluntarily with the police and answered questions on a
variety of topics.8 During the interview, in an apparent effort
to deflect attention from himself and to establish an alibi, the
defendant made numerous statements that the jury could have
found were false. The proscription of Doyle does not apply in
these circumstances. As we have previously stated, "[t]he
omission of facts from one statement that are contained in
another statement is not silence within the meaning of Doyle."
Sosa, 79 Mass. App. Ct. at 113. Consequently, the challenged
remarks did not amount to a constitutional violation.
The defendant also argues that a Doyle error occurred
because he ultimately exercised his right to remain silent and
terminated the interview. This claim is equally unavailing. As
the defendant acknowledges, the "sine qua non of a Doyle
violation is the government's use of the defendant's silence
against him" (emphasis original). Waite, 422 Mass. at 798.
Here, the fact that the defendant ultimately terminated the
interview is of no consequence because the invocation of his
right was not used against him.
This case is distinguishable from Commonwealth v. Clarke,
48 Mass. App. Ct. 482 (2000), on which the defendant relies. In
8 There was no direct testimony regarding the length of the
interview. We note, however, that it took about thirty-three
minutes to play the redacted video for the jury.
11
Clarke, the defendant, who was charged with aggravated rape,
waived his Miranda rights and agreed to be questioned by a
Boston police detective. Id. at 484. During the interview, the
defendant claimed that he did not know the victim. Id. at 485.
Upon being confronted with incriminating information, the
defendant ended the interview. Id. Later, at trial, the
defendant took a different position. Id. at 484. He said that
the victim was a prostitute and that they had had a consensual
sexual encounter. Id. We held that the defendant's silence was
used against him when the prosecutor argued that the defendant
had "stopped answering . . . questions because he realized that
he had been caught in a lie and, for that reason[, he] 'changed
his defense.'" Id. at 487. The prosecutor also implied that
the defendant's refusal to answer further questions was evidence
that he had fabricated his testimony. Id. Here, by contrast,
the prosecutor did not argue or imply that the defendant's
invocation of his right to remain silent was evidence of his
guilt. Instead, the prosecutor argued, within the bounds of
proper argument, that the defendant's failure to tell the police
that he shot Llorens in self-defense was, as the defendant
himself had testified, a "lie[]."9
9 The defendant's reliance on United States v. Caruto, 532
F.3d 822 (9th Cir. 2008), also is misplaced. In that case the
defendant gave a brief postarrest statement lasting five to
seven minutes before invoking her right to remain silent. Id.
12
b. Admissibility of accusatory questions and defendant's
denials. For the first time on appeal, the defendant claims
that the video recording of his interview with the police was
insufficiently redacted. His primary argument concerns
Detective Pioggia's statements that the defendant was charged
with "killing a kid" and the defendant's denials in response to
those accusations. He contends that these exchanges should have
been redacted from the recording because they constitute
inadmissible hearsay. The defendant also contends that it was
error to admit those portions of his interview where he denied
having been or having had reason to be in the area where the
shooting occurred and denied knowing Llorens or Hutchins. The
defendant further asserts that these alleged errors were
exacerbated by the prosecutor's closing argument and the judge's
instruction on consciousness of guilt.
The admissibility of the video recording (and the
statements contained therein) was the subject of a motion in
limine filed by the Commonwealth prior to trial. At the hearing
on the motion, the Commonwealth argued that because the
defendant's statements were false, they were admissible as
evidence of consciousness of guilt. The prosecutor also
at 824. She then testified at trial and provided additional
details that were not inconsistent with the statements made
during her custodial interview. Id. at 830-831.
 13
requested an instruction on consciousness of guilt. Defense
counsel objected to the admission of the video recording, but
only on the ground that the defendant's statements were not
voluntary. The judge initially reserved decision on the motion
and subsequently admitted the recording in evidence with no
further objection. In addition, without further objection, the
judge instructed the jury as the Commonwealth had requested,
stating that if they found that the defendant had made false
statements to the police, they could consider those statements
as evidence of consciousness of guilt.10 Given the absence of
any objection, we review the defendant's argument to determine
whether any error created a substantial risk of a miscarriage of
justice. Womack, 457 Mass. at 273.
We first address Pioggia's statements that the defendant
was charged with "killing" Llorens, and the defendant's denials
("that's crazy"). The long-standing rule in Massachusetts is
that "[e]xtrajudicial accusatory statements made in the presence
10The judge also instructed the jury that it was not
necessary to infer consciousness of guilt from any false
statements during the interview; that they should do so only if
the inference was reasonable; and that the jury were to decide
what weight to give any such inference. In addition, the judge
noted that there could be numerous reasons why an innocent
person might make false statements to the police; that such
conduct did not necessarily reflect feelings of guilt; that even
feelings of consciousness of guilt may not prove guilt in fact;
and that such evidence alone was not enough to prove actual
guilt.
14
of a defendant, which he has unequivocally denied, are hearsay
and inadmissible as evidence of guilt in the Commonwealth's case
in chief" (footnotes omitted). Womack, 457 Mass. at 272. See
Commonwealth v. Spencer, 465 Mass. 32, 46 (2013) ("the proper
rationale for excluding accusations and denials is that they
constitute inadmissible hearsay"). However, evidence of a
defendant's out-of-court statement denying culpability may be
admissible for other nonhearsay purposes. For example, in
Commonwealth v. Cruz, 373 Mass. 676, 691-692 (1977), the
defendant's unequivocal denials in response to police
accusations were admitted for the purpose of showing the
defendant's state of mind and the voluntariness of his
confession. In Commonwealth v. Bonnett, 472 Mass. 827 (2015),
the court concluded that, where "the evidence suggested, as
defense counsel conceded, that [the defendant's statement to
police denying that he had been at the location of the shooting
under investigation] was a 'false statement,' [it was]
admissible 'to show consciousness of guilt.'" Id. at 839,
citing Commonwealth v. Lavalley, 410 Mass. at 649. The court's
decision in Lavalley is also instructive. In that case, the
defendant, who was convicted of rape, initially told the police
that he had been drinking with the victim and a few friends and
that he had gotten into an argument with the victim. Id. at
647. He did not say anything about engaging in sexual
15
intercourse with the victim at that point, thereby implicitly
denying the allegation of rape, but he later testified at trial
that the two had had a consensual sexual encounter that the
victim had initiated. Id. at 648. In Lavalley, as here, the
prosecutor asked the judge to instruct on consciousness of
guilt, and the judge did so over the defendant's objection. Id.
The court concluded that the judge properly instructed the jury.
Id. at 649-650.
Returning to the circumstances presented here, we
acknowledge that Detective Pioggia's statements informing the
defendant that he was charged with murder and the defendant's
unequivocal denials to those accusations are hearsay. See
Spencer, 465 Mass. at 46. However, even if we were to assume
that the accusations and denials should have been redacted from
the recording, there was no risk of a miscarriage of justice.
This is not a case where the defendant unequivocally denied
accusations by the police during an interview and continued to
deny the charges against him at trial. Contrast Commonwealth v.
Diaz, 453 Mass. 266, 273-274 (2009), overruled in part on other
grounds by Womack, 457 Mass. at 274. Here, as we have
discussed, the defendant gave one version of events to the
police and then testified to a different -- inconsistent --
16
version at trial.11 In light of the defendant's trial testimony,
the defendant's statements to the police in which he denied
killing Llorens and his failure to disclose to the police that
he shot Llorens in self-defense were part of the apparently
false narrative, probative of consciousness of guilt, that was
already before the jury. See Lavalley, 410 Mass. at 649 (where
defendant offered one version of events during custodial
interview and another at trial, omissions in defendant's
statements during interview constituted false statements
admissible at trial to show consciousness of guilt).
Consequently, the failure to redact the video recording to
exclude Detective Pioggia's accusations and the defendant's
denials did not cause justice to miscarry.12
The defendant's second contention, that the video recording
should have been redacted to exclude his statements that he did
11For this reason, the defendant's reliance on Commonwealth
v. Diaz, 453 Mass. 266, for support is misplaced. The premise
of the defense in Diaz was misidentification, and as a result,
there was no discrepancy between the defendant's denial of the
charge of murder when he was interrogated by police and his
defense at trial. Id. at 270, 273.
12The defendant claims that the admission of this evidence
"harmed" his claim of self-defense because it rendered his
testimony at trial less credible. However, the defendant made
numerous apparently false statements, each of which undermined
his credibility at trial. Moreover, contrary to the defendant's
assertion that there was little evidence to rebut his claim of
self-defense, the Commonwealth presented ample evidence, which
included testimony from witnesses who were at the scene,
demonstrating that the defendant did not act in self-defense.
17
not know Llorens or Hutchins and did not frequent Hutchins's
neighborhood, requires little discussion. Unlike the questions
that implied that the defendant had killed Llorens, the
questions seeking information about his routine and
acquaintances did not accuse the defendant of criminal activity.
See Commonwealth v. Cruzado, 480 Mass. 275, 278 (2018) (negative
answers to questions that did not accuse defendant of criminal
activity admissible). Accordingly, the defendant's statements
denying familiarity with Llorens and Hutchins and denying that
he had spent time in the area of the shooting were properly
admitted. Id.
Finally, given our discussion supra, we reject the
defendant's argument that it was improper for the prosecutor to
comment on the defendant's omissions and his responses to the
police upon learning of the charge against him. We further
conclude that the judge properly instructed the jury on
consciousness of guilt.
c. Jury instructions on voluntary manslaughter. The judge
instructed the jury on voluntary manslaughter, which included an
explanation of heat of passion on reasonable provocation and
heat of passion induced by sudden combat. As to reasonable
provocation, the judge instructed, inter alia:
"[M]ere words, no matter how insulting or abusive, standing
alone, do not constitute reasonable provocation.
18
"Physical contact, even a single blow, may amount to
reasonable provocation. Whether the contact is sufficient
will depend on whether a reasonable person under similar
circumstances would have been provoked to act out of
emotion rather than reasoned reflection."
As to sudden combat, the judge instructed:
"Sudden combat involves a mutual and sudden assault by both
the deceased and the defendant. In sudden combat[,]
physical contact, even a single blow, may amount to
reasonable provocation. Whether the contact is sufficient
will depend on whether a reasonable person under similar
circumstances would have been provoked to act out of
emotion rather than reasoned reflection."
Defense counsel objected, claiming that the instructions
improperly suggested that some sort of physical contact had to
be shown before the jury could find there was reasonable
provocation. The objection was overruled. Because the issue
was preserved, we consider whether there was error and, if so,
whether the error was prejudicial. Womack, 457 Mass. at 273.
There was no error. The judge's instructions tracked the
Model Jury Instructions on Homicide (2013) (Model Instructions)
in effect at the time of the defendant's trial. "In general,
when a judge employs the [Model Instructions], which have been
approved by the Supreme Judicial Court, there is no need to
instruct further on the concepts contained therein." Sosa, 79
Mass. App. Ct. at 115-116 (where trial judge used broad
terminology in Model Instructions that encompassed more specific
instruction sought by defense, not error for judge to decline to
further expound upon instruction). See Commonwealth v.
19
Phillips, 452 Mass. 617, 632 (2008) (after quoting verbatim from
Model Instructions, judge did not need to instruct further on
elements of extreme atrocity or cruelty). See also Commonwealth
v. Deane, 458 Mass. 43, 59 n.15 (2010) (refusal of requested
instruction is error "only if the requested instruction . . .
was not substantively covered in the jury charge").13
d. Cumulative error. Because there was no error in the
Commonwealth's opening or closing remarks or in the jury
instructions, and no substantial risk of a miscarriage of
justice resulting from the admission of any portion of the
defendant's recorded interview, there is no basis for the
defendant's claim that the cumulative impact of the asserted
errors requires a new trial.
Judgments affirmed.
13We acknowledge that the Model Jury Instructions on
Homicide were revised in 2018 and the instruction on heat of
passion on reasonable provocation (although not the instruction
on heat of passion by sudden combat) now includes an explicit
statement that physical contact is not necessary for reasonable
provocation. See Model Jury Instructions on Homicide (April
2018), reprinted in Massachusetts Superior Court Criminal
Practice Jury Instructions § 2.7, at 2-50 (Mass. Cont. Legal
Educ. 2018). This revision, however, does not affect our
conclusion that the judge did not err.