Commonwealth v. Roman

• Decision Date: 04 November 2014
• Docket Number: SJC–11311.
• Citation: 18 N.E.3d 1069,470 Mass. 85
• Parties: COMMONWEALTH v. Miguel ROMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

470 Mass. 85

18 N.E.3d 1069

COMMONWEALTH

v.Miguel ROMAN.

SJC–11311.

Supreme Judicial Court of Massachusetts, Hampshire.

Argued Sept. 5, 2014.

Decided Nov. 4, 2014.

Donald A. Harwood for the defendant.

Jane Davidson Montori, Assistant District Attorney, for the Commonwealth.

Present: GANTS, C.J., SPINA, BOTSFORD, LENK, & HINES, JJ.

Opinion

SPINA

, J.

The defendant was convicted of deliberately premeditated murder and possession of a class B substance. On appeal he asserts error in (1) the denial of his motion for a required finding of not guilty; (2) the denial of his motion to dismiss based on Mass. R.Crim. P. 36

, as amended, 422 Mass. 1503 (1996) (rule 36 ); (3) the denial of his motion to dismiss for delayed disclosure; (4) the judge's failure to declare, sua sponte, a mistrial based on alleged jury tampering; and (5) the judge's instruction pursuant to Commonwealth v. Ciampa, 406 Mass. 257, 547 N.E.2d 314 (1989). The defendant also seeks relief under G.L. c. 278, § 33E. We affirm the convictions and decline to exercise our authority under G.L. c. 278, § 33E, to reduce the conviction of murder to a lesser degree of guilt or order a new trial.

1. Background. The jury could have found the following facts. Shortly before midnight on January 28, 2010, Angel Gonzalez (Angel) called the defendant on his cellular telephone to arrange a purchase of cocaine. Angel and Luis Soto then drove to a night club in Holyoke where the defendant sold them cocaine. They traveled in a grey four-door 2006 Nissan Altima owned by Soto's girl friend. They then drove to a bar in Holyoke, ingesting the cocaine en route.

At about 12:56 a.m. on January 29, Angel's mother called Angel on his cellular telephone and told him that the victim was at the Holyoke Medical Center and needed a ride. Soto, Angel, and Angel's brother Felipe left the bar in the Altima. They drove to the hospital and went inside to get the victim. The four men then returned to the bar. After about one hour they all left together. Angel called the defendant on his cellular telephone to arrange another purchase of cocaine. Angel's cellular telephone records showed three calls that connected with the defendant's cellular telephone between 1:30 a.m. and 1:52 a.m. They drove to the night club to meet the defendant. Angel and the victim got out of the car and went inside the club. When they returned, the defendant was with them and the three men entered the Altima.

Soto was driving; Angel was in the front passenger seat; the defendant sat behind Soto; Felipe was behind Angel; and the victim sat between the defendant and Felipe. The defendant told Soto to drive. They proceeded down High Street. The defendant directed Soto to turn right onto Essex Street. The defendant pulled out a handgun and shot the victim twice in the left rear side of his head. Soto stopped the car and shifted into the “park” position. Felipe got out of the car and ran toward High Street. Angel got out of the car and stood nearby for a short time before running toward High Street. Soto was the third to get out of the car. He hesitated because he was concerned about abandoning his girl friend's car, but then he left and ran toward High Street.

The defendant was the last person to get out of the Altima. He walked around the rear of the car, opened the rear passenger's side door and fired a third shot into the victim's right temple. He then got into the driver's seat of the Altima and sped off. The defendant turned onto Newton Street where he stopped and dumped the victim's body in the road. In the meantime, Felipe, Angel, and Soto made their way to Sam's Food, a nearby store on High Street. The defendant called Angel's cellular telephone at 2:04:07 a.m. The call connected for forty-four seconds. The Altima, driven by the defendant, arrived at Sam's Food store shortly thereafter. The defendant left the car there, and left the scene himself. The others then drove away in the Altima. Soto turned himself in to police the next day.

2. Motion for required finding of not guilty. The defendant argues that the evidence was not sufficient to convict him and that the judge erred in denying his motion for a required finding of not guilty. He contends that Felipe and Soto, who testified pursuant to cooperation agreements¹ and whose murder indictments had been nolle prossed before the defendant's trial, gave “perjurious” and “uncorroborated” testimony that was legally insufficient to support a conviction.

He further contends that the evidence “conclusively demonstrate[d]”

that Felipe was the only person in the car positioned to fire a bullet into the right temple of the victim, who was sitting immediately to his left. In this regard he cites the testimony of Soto, who heard only one shot fired in the car, then turned and saw the victim falling forward. The defendant reasons that this single shot, the only shot Soto heard in the car, must have been the one fired into the victim's right temple. He further cites the testimony of Barbara St. Amand, a witness who looked out of her apartment window on Newton Street after hearing a car come to a screeching stop. She saw one man wearing a black hooded jacket, the same type of clothing worn by Felipe, go to the rear passenger's side of the car and pull something out. The man then entered the car through the door behind the driver, and the car sped away. The defendant contends that St. Amand's testimony establishes that two people were involved in the killing—the driver of the car, Soto, and his rear driver's side passenger, Felipe.

The defendant asserts that there was no evidence that he had a motive to kill the victim and, by contrast, that Angel and Felipe went to see the victim about one week before the killing to settle a dispute over a large sum of money that the victim owed Felipe and Angel. The victim was not at his apartment but a brother of Angel and Felipe took a valuable necklace from the victim's girl friend as payment. When the victim learned what had happened he telephoned Angel and told him he was “going to kill him and fuck him up.”

When reviewing the denial of a motion for a required finding of not guilty at the close of the Commonwealth's case, “the critical inquiry ... must be ... to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.... [The] question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979)

, quoting Jackson v. Virginia, 443 U.S. 307, 318–319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In developing his argument, the defendant largely has marshaled the evidence in the light most favorable to himself. We reject the defendant's approach. The jury were not required to accept all the testimony of a witness, for example, St. Amand; nor are we. When deciding the denial of a motion for a required finding of not guilty, we consider the evidence in the light most favorable to the Commonwealth. In addition, the absence of evidence of motive is not material to our

inquiry. The Commonwealth is not required to prove motive. See Commonwealth v. Brooks, 422 Mass. 574, 581, 664 N.E.2d 801 (1996)

.

Soto testified that as they were driving he heard a “detonation” and stopped the car. He turned around and saw the victim falling forward, and he saw the defendant holding a small black gun pointed at the victim's head. There was evidence from which the jury could infer that Soto heard only one shot because he experienced ringing in his ears after the detonation.

Video recordings from security cameras located at Essex and High Streets, Newton and Cabot Streets, Sam's Food store, and Holyoke Medical Center were admitted in evidence and shown to the jury. The video recording from the Holyoke Medical Center showed Soto, Felipe, and Angel inside the hospital between 12:56:47 a.m. and 12:57:42 a.m. on January 29, where they earlier had picked up the victim. It also showed the Altima in the parking lot.

The video recording from the security camera at Essex and High Streets showed the Altima stopped in the road. A person in the rear passenger's side seat could be seen getting out of the car and running toward High Street. That person was followed by a person in the front passenger's side seat, and then the driver. Those three people could be seen running toward High Street. The next person to step out of the car was a person in the rear driver's side seat. He walked around the rear of the car to the rear passenger's side door, opened it, and leaned inside for about thirteen seconds. That person then backed away from the car and walked around the rear of the car toward the driver's side. The person entered the car through the driver's door and drove away. The video tape indicated this took place between about 2:02:22 a.m. and 2:02:56 a.m. on January 29, 2010.

Soto's testimony that he, Felipe, and Angel met outside Sam's Food store shortly after they fled from the Altima was corroborated by the video recording from the security cameras outside and inside Sam's Food store. The video recording from the front door area showed the three men as they arrived at the store, variously between 2:04:02 a.m. and 2:04:17 a.m. on January 29. The video recording from inside the store showed Angel and Soto inside the store, and it later showed Angel and Felipe talking at the front door. These video recordings corroborated Soto's testimony that he, Felipe, and Angel had made their way on foot to Sam's Food store.

The video recordings from the security cameras outside the front and at the rear parking lot at Sam's Food store showed the Altima turning right onto High Street from Cabot Street and then approach the front door area of the store at 2:04:18 a.m. The front door video recording showed Angel talking on his cellular...