Com. v. Colon

• Decision Date: 23 August 1990
• Citation: 408 Mass. 419,558 N.E.2d 974
• Parties: COMMONWEALTH v. Jose Anibal COLON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 974

558 N.E.2d 974

408 Mass. 419

COMMONWEALTH v. Jose Anibal COLON.

Supreme Judicial Court of Massachusetts,

Worcester.

Argued May 9, 1990.

Decided Aug. 23, 1990.

John Salsberg, Boston, for defendant.

Lynn Morrill Turcotte and Julie Muse Stanley, Asst. Dist. Attys., for Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.

ABRAMS, Justice.

The defendant appeals from his conviction of the murder in the first degree of George L. Hanna. He claims the judge erred in (1) denying his pretrial motion to suppress his confession; (2) denying his motion to disqualify the district attorney's office from this case for a conflict of interest, and requiring withdrawal of defense counsel; (3) denying his motion for a change of venue; (4) denying his motion for a mistrial based on the composition of the venire and on the prosecutor's use of peremptory challenges; (5) failing to conduct a colloquy with the defendant prior to questioning prospective jurors on the issue of racial or ethnic bias; and (6) admitting testimony of a witness who agreed to testify in accordance with a plea agreement. The defendant also asks that we exercise our power under G.L. c. 278, § 33E (1988 ed.), and order a new trial or entry of a verdict of a lesser degree of guilt. For the reasons stated, we conclude that there is no reversible error and we affirm the conviction. We also conclude that there is no reason for us to exercise our power under G.L. c. 278, § 33E, in favor of the defendant.

We summarize the evidence on which the jury could have based their verdict. In February, 1983, the defendant had been in the continental United States for two and one-half weeks, having recently arrived in Worcester from his native Puerto Rico. During that time, the defendant befriended Miguel Rosado. The defendant lived at 80 Chandler Street in Worcester, with his sister, Maria Figueroa and her husband, Abimael Colon-Cruz. On the morning of February 26, 1983, the defendant's girl friend of two and one-half weeks, Carmen Mangual, accompanied the defendant to his sister's (Figueroa's) apartment. Several hours later Rosado arrived. At approximately 7:30 P.M. the three men (the defendant, Rosado, and Colon-Cruz) left the apartment in Rosado's red Vega automobile to stake out a liquor store. Each man was armed with a handgun. The defendant had in his possession a .22 caliber revolver, Rosado a .32 caliber revolver, and Colon-Cruz a .45 caliber semi-automatic weapon.

On the night of February 26, 1983, Trooper George Hanna, a uniformed State police officer, was on duty in a marked State police cruiser. At approximately 8:30 P.M., Hanna was in his cruiser on Route 20 in Auburn. He activated the blue domelights and over the cruiser's loudspeaker ordered the driver of the Vega to pull into the parking lot of J & S Liquors. Hanna ordered the men out of the Vega. While he was frisking one of the men, a struggle broke out, and the defendant shot Hanna at least three times. Hanna suffered a total of seven gunshot wounds. One of the men shot one of the cruiser's tires. The men took Hanna's revolver, got into the Vega, and drove away.

John J. Richardson, Jr., was in his house behind J & S Liquors when the shooting occurred. When he heard a gunshot, he went to his door and saw three men standing near the passenger side of the Vega and Hanna standing next to the cruiser. Richardson heard another shot and saw Hanna fall to his hands and knees. Richardson went to his kitchen to telephone the police. While placing the telephone call, he looked out the window and copied down the Vega's registration number. As the Vega left the parking lot, Richardson saw Hanna get up and head toward Route 20.

John P. Iandoli, and two passengers, Edward Massei and Thomas Baker, were traveling in Iandoli's pickup truck along Route 20 toward Periwinkle's Pub. As they passed J & S Liquors, Iandoli saw the cruiser and three Puerto Rican men standing next to the Vega. Iandoli pulled into the parking lot of the nearby Periwinkle's Pub and, finding it full, turned around and left. As he headed back toward J & S Liquors, Iandoli saw Hanna gesture for the truck to stop, and then fall in front of the truck. Iandoli also observed the Vega traveling toward Route 20 ahead of him. Iandoli stopped the truck and with the assistance of his passengers, moved Hanna to the curb. Leaving the passengers with Hanna, Iandoli got back into the truck and followed the Vega. Once behind the Vega, Iandoli wrote down the registration number. He pulled the truck up next to the car and looked at the occupants. He observed the occupants looking at him from time to time. He then returned to the scene where other police officers already had arrived. Hanna was taken to a nearby hospital where he died a short time later.

The area around the scene of the shooting was sealed off and an investigation initiated. A wallet was found containing identification belonging to Colon-Cruz and raffle tickets for the El Coqui softball team. The tickets were traced; the stubs immediately preceding the tickets found in the wallet had the defendant's name on them. Iandoli gave the police the information he had, including the Vega's registration number, which was broadcast over the police radio.

The defendant, Rosado, and Colon-Cruz arrived back at the apartment. Rosado told Mangual and Figueroa of the shooting and asked the women to go to his house and get him clothes and other items. The women left in the Vega. They were stopped by an officer searching for the Vega. Within minutes another officer arrived and the women were arrested. Iandoli was brought to observe the car, and he identified it as the same car that he had chased.

The women were taken to the Worcester police station and interviewed. Figueroa gave her consent to search her apartment at 80 Chandler Street. As the officers gathered near the apartment, one of them observed an automobile pass by, occupied by three Hispanic men and one woman. Because the license plate was not illuminated, one of the officers followed the car. The officer attempted to stop it by activating the cruiser's blue lights. The car did not stop. One of the occupants repeatedly looked back at the cruiser and then turned forward. Eventually, the car pulled over to the side of the road. As the officer pulled his cruiser behind the car, the driver got out and walked toward the cruiser. The officer ordered him back into the car. The officer and his partner approached the car, one on either side, and asked the occupants for identification. The man in the back seat replied that he had none, and the man in the front passenger seat identified himself as "Jose Colon." It was later determined that he was Abimael Colon-Cruz, not the defendant. The officer recognized the name as that of one of the suspects they were searching for and told his partner to watch the man. Turning to the man in the back seat, the officer noticed a bulge in the man's back left pocket. Not knowing what the object was, the officer removed it and discovered that it was a wallet. The wallet contained a hospital card with the name Miguel Rosado Cruz. The officers called for backup assistance.

Two other State troopers arrived. Trooper Joseph Flaherty opened the passenger side of the car and the man sitting in the seat, Colon-Cruz, slid over to the driver's side. Flaherty saw a brown bag similar to a bowling bag, on the floor between Colon-Cruz's legs. As Flaherty pulled the bag toward him, the zipper opened revealing two handguns, one of which he identified immediately as a State police .357 magnum. Searching the bag further, he found three other handguns, a .45 caliber, a .32 caliber, and a .22 caliber. Colon-Cruz and Rosado were arrested.

As a result of information received by the police, police officers went to an apartment at 271 Constitution Avenue in Worcester, in search of the defendant. The officers identified themselves to residents and obtained consent to search for the defendant, who was found in a second floor bedroom. After a struggle, see infra at 979, the defendant was arrested. The defendant made a statement while in police custody. See infra at 979. We turn to the defendant's claim that the judge erred in denying his motion to suppress the statement he made to the police.

1. The defendant's statement to the police. Following his arrest, the defendant was questioned by the police. One of the troopers who questioned the defendant acted as a translator, because the defendant spoke no English. The defendant moved before trial to suppress his statement on the ground that the statement was coerced and not the product of a knowing and intelligent waiver of the rights protected by the Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966). On appeal, he also argues that the translator was unqualified and biased and that the statement was not properly authenticated. We discuss these issues in turn.

(a) Voluntariness of the statement. We summarize the trial judge's findings. On February 27, 1983, after receiving information concerning the defendant's whereabouts, a contingent of State troopers went to arrest the defendant. The defendant attempted to flee, but two officers seized him and, with some difficulty, forced him to the floor. The defendant struggled considerably. The police subdued the defendant enough to handcuff him. As the defendant continued to struggle, the officers carried him down the stairs of the apartment to a police cruiser. The police took the defendant to the Worcester police department shortly after 1:30 P.M. and placed him in an interview room with Troopers Paul McDonald, Thomas Farrell, and Elliot Matos, who acted as an interpreter. ¹

At the beginning of the interview, Matos identified himself to the defendant and told the defendant that he would "read him his rights" as soon as a Spanish Miranda card was located. No questions...