Com. v. Avila
| Decision Date | 15 September 2009 |
| Docket Number | SJC-10132 |
| Citation | 454 Mass. 744,912 N.E.2d 1014 |
| Parties | COMMONWEALTH v. Hector Guerrero AVILA. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Chrystal A. Murray for the defendant.
Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth.
Present: MARSHALL, C.J., IRELAND, CORDY, BOTSFORD, & GANTS, JJ.
A jury convicted the defendant, Hector Guerrero Avila, of murder in the first degree on the theories of premeditation and extreme atrocity or cruelty and possession of a firearm without a license. On appeal, the defendant argues that the judge erred (1) in admitting testimonial and documentary evidence that had been introduced by the Commonwealth to rebut a defense based on the allegedly inadequate police investigation (Bowden defense1); (2) in admitting evidence used by the Commonwealth to prove deliberate premeditation and extreme atrocity or cruelty; (3) in admitting evidence about the contents of a telephone call allegedly made by the defendant the night before the murder; and (4) in declining to give an instruction to the jury based on Commonwealth v. Bowden, 379 Mass. 472, 485-486, 399 N.E.2d 482 (1980) (Bowden). The defendant also raises certain claims under the standards set out in Commonwealth v. Moffett, 383 Mass. 201, 216-217, 418 N.E.2d 585 (1981). We reject the defendant's arguments and, after reviewing the entire case, decline to exercise our authority under G.L. c. 278, § 33E, to reduce the degree of guilt or order a new trial.
1. Background. The jury could have found the following. The defendant was close friends with Pedro Cruz, and in the fall of 2003, the two lived two blocks apart in Lawrence. The defendant and Cruz typically spoke to each other on the telephone several times a day and the defendant regularly spent time at Cruz's apartment. Cruz drove a white Chevrolet Corsica automobile that the defendant had permitted Cruz to have registered in the defendant's name in order for Cruz to obtain a lower insurance rate.
In October, 2003, Cruz was selling drugs in Lawrence with the assistance of the defendant. The defendant loaned Cruz money to be used for the purchase of cocaine, which Cruz stored in his home, repackaged into smaller quantities, and sold at a profit. At some point, the defendant introduced Cruz to Jose Crespo, the victim, whom Cruz knew only by the name of "Xavier." The victim apparently stayed with Cruz in his apartment for some days, but also rented a room or apartment from Felipa Marquez. Marquez purchased drugs from Cruz, and the victim worked with Cruz in the sale of drugs. Cruz initially gave the victim drugs to sell, but after the victim failed to turn over to Cruz all the money from the sale of these drugs, Cruz arranged to have the victim telephone him when the victim had a buyer.
Some days after Cruz met the victim, Cruz traveled to New York. While Cruz was in New York, the defendant, who had access to Cruz's apartment even when Cruz was not there, telephoned him to say that $1,000 of cocaine was missing from Cruz's closet. According to Cruz, both he and the defendant suspected that the victim had taken the drugs. When Cruz returned from New York and mentioned the theft to the victim, he responded, "Oh well, you know, things happen."
On November 5, 2003, the day before the murder, the defendant telephoned Cruz and told him that while he was at Cruz's apartment that day, two men had broken in and attacked him with a knife. Cruz arrived home from his work to find that the defendant had cuts and bruises on his hands and back and that his apartment had been "torn apart"; there was "blood around all over." The defendant told Cruz that he had chased the two men out of the apartment and had seen them get into a car driven by a third man. The defendant also told Cruz that the erratic way in which the driver had pulled out made the defendant think that the driver was the victim. As an apparent consequence of this supposition, the defendant and Cruz drove around in Cruz's car, looking for the victim; the defendant had placed a baseball bat in Cruz's car. When the defendant and Cruz were unsuccessful in finding the victim, the defendant told Cruz that he would like Cruz's help looking for the victim the next day.
On November 6, the defendant telephoned Cruz and again asked him for help in looking for the victim; the defendant indicated that he wanted to determine if the victim was the person who had attacked him. Cruz telephoned his employer to say he would not be in for work. Cruz then received a telephone call from the victim, who asked whether Cruz could provide him with some cocaine to sell. Cruz told the victim that if the victim had the money, Cruz could supply the drugs, and the two agreed on a meeting place. When Cruz arrived at the meeting place, the victim left the car of his customer, entered Cruz's car, gave Cruz some money, took the "stuff" back to his customer,2 returned to Cruz's car, got in, and drove away with Cruz. Before meeting the victim, Cruz had telephoned the defendant to tell him that he would be seeing the victim.
As Cruz and the victim were driving, the defendant telephoned Cruz on Cruz's cellular telephone, and Cruz described his location to the defendant. Soon afterward, the defendant telephoned Cruz again to tell him that he, the defendant, was directly behind Cruz and that Cruz should pull over. Cruz pulled over on Brook Street and told the victim that the defendant wanted to talk to him. The defendant parked his car, a brownish-grey Honda Civic automobile, a few feet behind Cruz's white Corsica. The victim got out of Cruz's car and walked toward the defendant's car. Cruz got out of his car but remained near it; he was, however, near enough to the defendant and the victim to hear them talking.
The defendant asked the victim whether he had stolen money from the defendant and whether the victim had been part of the attack on him. The victim replied that he had not been involved. The defendant then pulled a gun out of a bag and shot the victim. At the time of this first shot, the defendant and the victim were approximately five to six feet apart, facing one another. The victim fell to the ground and then struggled to get up. The defendant extended his arm out toward the victim and shot him a second time. Cruz returned to his car and drove down Brook Street, passing a witness, Harry Milliken, who was standing in or near the street but past where the defendant's and Cruz's cars were parked, and who very soon thereafter reported the car's registration plate number to the police.
At some point after Cruz left the scene, the defendant telephoned Cruz, told him that he, the defendant, was now in a different car, and arranged to meet him at a gasoline station in Methuen. When they met, the defendant told Cruz that the police had already been to the defendant's home, having found his address through the registration plate number reported by Milliken to the police. The defendant encouraged Cruz to go to the police and tell them that the defendant had shot the victim because he was "scared for his life." The defendant then drove Cruz to his sister's house and left him there. Cruz stayed at his sister's house for several hours and then drove with his brother to the Lawrence police station.
While at the police station that night, November 6, Cruz gave the first of three statements he would make to the lead police investigators on the case, Lawrence Detective Michael Laird and State Trooper Matthew Gravini. In this first statement, Cruz acknowledged that he had driven the victim to the scene of the shooting in the white Chevrolet Corsica, claimed that the shooter was an unknown black man who had driven there in a black Honda Prelude, and did not tell the police that the defendant was present at the scene or involved in the shooting.3 The police did not believe Cruz, or at least did not think Cruz was telling them all that he knew, and, with Cruz's consent, they administered a lie detector test to Cruz the following day. He "failed" it.4
As a result of a lead developed from the subpoenaed telephone records, the police interviewed Marquez, the victim's landlady, who described a telephone call she had received the night before the shooting from a Spanish-speaking male, warning her to not "let [the victim] in anymore" because "a very dangerous person is looking for [him] to kill him, because they gave him some material that he didn't pay for." Marquez used a feature on her telephone that allowed her to identify the number from which she had just been telephoned; the number was the same as the defendant's cellular telephone number.
Approximately two weeks later, on November 20, 2003, the police went to Cruz's workplace and interviewed him again, both at the workplace and at the police station. In this second interview, Cruz provided additional information but did not identify the defendant as the shooter. Later that night, Cruz telephoned Laird and told him that the defendant was the shooter. The next day, November 21, Cruz went to the police station, met with Laird and Gravini, and made a third statement. In it, he told the police about his close friendship with the defendant and connection to the victim, related to them details about the events that preceded the shooting, described the shooting itself, and reiterated his claim from the night before that the defendant was the shooter.5
Following Cruz's third statement to the police, charges were brought against the defendant and, on December 18, 2003, he was arrested in New York City. Gravini traveled there with a Lawrence police officer to interview the defendant. After waiving his Miranda rights, the defendant made a statement denying that he had been on Brook Street on November 6, the day of the shooting, and also denying that he knew someone named Jose Crespo (the victim) or someone named "Xavier."
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