DocketNumber: 17-P-602
Citation Numbers: 123 N.E.3d 801, 94 Mass. App. Ct. 1121
Filed Date: 2/13/2019
Status: Precedential
Modified Date: 7/24/2022
Christopher Pichardo was shot and killed while committing an armed robbery with the defendant and Robinson Tejeda. Following a jury trial in the Superior Court, the defendant was convicted of second degree felony-murder, armed robbery, home invasion, possession of a class D substance and carrying a firearm without a license.
Discussion. 1. Motion to suppress. Before trial, the defendant moved to suppress two recorded statements he gave to Boston police detectives, claiming that they were involuntary. The motion judge, who was not the trial judge, held an evidentiary hearing and made factual findings that the defendant does not challenge. We summarize those findings.
On February 13, 2012, the defendant, then eighteen years old, called the Boston Police Department and asked to speak with an officer about Pichardo's death. The defendant agreed to participate in a recorded interview with Detectives Kevin Doogan and Tod Herron. Doogan gave the defendant Miranda warnings even though the defendant was not under arrest. The tone of the interview was calm and businesslike, the defendant spoke clearly and freely, and he was not impaired by drugs or alcohol. The detectives did not pressure or coerce him. The defendant returned home after the interview ended. Thereafter, on March 23, 2012, the defendant was arrested and transported to Boston Police Headquarters. He was placed in an interview room with Doogan and Herron, who again administered Miranda warnings. The defendant read, and indicated that he understood, each warning. The detectives did not engage in coercive or threatening conduct as the defendant gave a second recorded statement.
Based on these facts, the motion judge, concluding that both of the defendant's statements to the police were voluntary, denied the motion to suppress. The defendant claims that the judge erred by failing to adequately consider the defendant's age and susceptibility to pressure from the detectives and third parties. We discern no error in the motion judge's application of constitutional principles to the facts as he found them. See Commonwealth v. Catanzaro,
The motion judge found that the detectives did not pressure the defendant or coerce him in any way. Based on the record before us, we "cannot say that the will of the defendant was overborne" by anything the detectives did. Commonwealth v. Libby,
The motion judge considered the defendant's argument that his statements were involuntary because he was threatened by Tejeda and "people in Lynn," but he concluded that the alleged threats did not render the defendant's statements involuntary because "no one threatened the defendant for the purpose of getting him to make an incriminating statement to the police." Rather, the judge found that any threats to the defendant were based on a suspicion that he had "set up" Pichardo or abandoned him after he was shot. While the defendant may disagree with the judge's conclusion, it was based on the judge's assessment of the credibility and weight of the evidence presented. On those issues, we defer to the motion judge. Commonwealth v. Yesilciman,
2. Prosecutor's questions. The victims of the armed robbery, Jonathan and Luis Santiago, were charged with drug offenses after police seized marijuana and cocaine at their residence. At trial, the Santiago brothers testified for the Commonwealth pursuant to plea and cooperation agreements.
The prosecutor's references to the Santiago brothers' obligations to testify truthfully were not repeated. After the witnesses answered the question, there was no further comment on the matter. At the charge conference the defendant did not object to the Commonwealth's request for the model instruction on plea and cooperation agreements, which contained the same language regarding truthful testimony. The judge gave the model instruction, which included the statement "that the Commonwealth does not know whether these witnesses are telling the truth." Considering these instructions and the strength of the evidence against the defendant, we cannot reasonably say that the prosecutor's single, improper reference to truthful testimony could have "materially influence[d] the guilty verdict." Commonwealth v. Alphas,
The defendant also claims that the prosecutor asked improper leading questions to elicit inadmissible evidence from trial witness Alvin Bernardez. Bernardez testified to the defendant's admission that on the day of the robbery, he, Tejeda, and Pichardo went to "catch a lick," that is, to participate in a robbery. After Bernardez explained his conversation with the defendant in more detail, the prosecutor asked, "[A]t any point, did [the defendant] tell you that he was not part of the robbery?" She then asked, "Did [the defendant] ever tell you that he didn't know what was going on?" Over the defendant's objection, Bernardez was allowed to answer both questions, "No, he didn't."
Assuming without deciding that the prosecutor's questions could be characterized as leading, the judge did not abuse her discretion in allowing them. See Commonwealth v. Casiano,
3. Curative instruction. In her closing argument, defense counsel urged the jury not to credit the Santiagos' testimony because the police had given them a "get out of jail free card." Defense counsel continued:
"Now that's not money, ladies and gentlemen, but what amount of money would you pay not to spend three years in state prison? What amount of money? Do you think there's any question that these officers bought, bought the cooperation and the testimony of these witnesses? Think, think about what they had to say."
After counsel concluded her argument, the judge instructed the jury "to disregard any inference that you may have drawn" from defense counsel's suggestion that the police officers bought the testimony of the Santiagos. The defendant claims this curative instruction was prejudicial error.
"[W]e consistently have held that, where the credibility of a witness is in issue, counsel may argue from the evidence why a witness should [or should not] be believed" (quotation omitted). Commonwealth v. Smith,
4. Firearm indictment. The defendant's final claim requires little discussion. The Commonwealth had no obligation to introduce evidence that the defendant did not have a firearm identification card because he made no showing that he was licensed to carry a firearm. Commonwealth v. Blanchard,
Judgments affirmed.
The defendant's conviction of second degree felony-murder was vacated following the verdict. Tejeda was also convicted of felony-murder, among other charges. A different Superior Court judge allowed Tejeda's motion for a required finding of not guilty on the murder indictment, and that decision was affirmed on appeal while Etienne's case was pending. See Commonwealth v. Tejeda,
The written plea and cooperation agreements were not introduced in evidence.
The defendant moved for a mistrial on the basis of leading questions and claims error in the denial of that motion. However, he does not argue the issue in his brief and therefore we decline to address it, Mass. R. A. P. 16 (a) (4), as amended,