Com. v. Colon-Cruz

• Decision Date: 13 November 1990
• Docket Number: COLON-CRUZ
• Citation: 562 N.E.2d 797,408 Mass. 533
• Parties: COMMONWEALTH v. Abimael
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 797

562 N.E.2d 797

408 Mass. 533

COMMONWEALTH v. Abimael COLON-CRUZ.

Supreme Judicial Court of Massachusetts,

Worcester.

Argued Sept. 4, 1990.

Decided Nov. 13, 1990.

James W. Rosseel, Worcester, for defendant.

Katherine E. McMahon, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and GREANEY, JJ.

ABRAMS, Justice.

The defendant, Abimael Colon-Cruz, was convicted of murder in the first degree for the killing of State Trooper George L. Hanna. Colon-Cruz appeals alleging that the judge erred in (1) denying his motion to suppress his statements to police; (2) denying his motion to suppress an identification of him by an eyewitness; (3) overruling his objections to the admission of certain testimony; and (4) denying his motion for a required finding of not guilty. Pursuant to G.L. c. 278, § 33E, the defendant raises numerous issues not raised at trial which he claims created a substantial likelihood of a miscarriage of justice. See G.L. c. 278, § 33E. ¹ The defendant also contends that the judge erred in denying his motions for new trial. Last, he asks that we exercise our power pursuant to G.L. c. 278, § 33E, and enter a verdict of a lesser degree of guilt or order a new trial. We conclude that the conviction should be affirmed and that there is no reason to exercise our power under G.L. c. 278, § 33E, in the defendant's favor.

The defendant is one of three men convicted of the murder of George Hanna. See Commonwealth v. Colon, 408 Mass. 419, 558 N.E.2d 974 (1990); Commonwealth v. Rosado, 408 Mass. 561, 562 N.E.2d 790 (1990). Because the defendant challenges the sufficiency of the evidence, we set forth in some detail facts the jurors could have found. The defendant, Abimael Colon-Cruz, also known as Emilio Otero, lived at 80 Chandler Street, Worcester, with his wife, Maria Figueroa. On the morning of February 26, 1983, Figueroa's brother, Jose Colon, and his girlfriend, Carmen Mangual, came to 80 Chandler Street, followed later by Miguel Rosado. Colon, Rosado, and the defendant spent approximately one-half hour together in the bedroom. Rosado then left to pick up his wife. When he returned, the three men spent another ten to fifteen minutes in the bedroom. At around 3 or 3:30 P.M., Rosado, Colon, and the defendant left the apartment. Colon said they were "going to check the place out." Mangual asked Colon to bring back some brandy. They came back later with the brandy. At approximately 7:30 P.M., the three men left the apartment again.

About one hour later, Hanna, a uniformed State trooper, stopped a red Vega automobile in the parking lot of J & S Liquors on Route 20 in Auburn. Witnesses testified to seeing three men in addition to Hanna standing between the two automobiles. One was spread-eagle across the front of the Vega. The other two were standing toward the rear. Shortly thereafter, gunshots were heard. John Richardson, whose house faces the rear of the liquor store, heard the shots and, based on his hunting experience, believed that the first shot was from a larger caliber gun, such as a .38 or .45, and the second from a .22 caliber weapon. Richardson went to his window and saw Hanna fall forward. Richardson observed Hanna attempt to get up and walk away. Two of the men jumped Hanna and wrestled him to the ground. The third man shot a .45 caliber gun into the police cruiser's tire. After struggling on the ground for a while, one of the men yelled, "Let's get out of here," or "get in," or "get him," and the three men climbed into the Vega from the passenger side. The man who had shot the cruiser's tire was the last to get in the Vega. The Vega then sped away. Hanna was found with seven gunshot wounds and taken to a hospital. He died at 9:50 P.M.

Colon, Rosado, and the defendant returned to 80 Chandler Street. Rosado told Mangual that the defendant shot the officer's tire. He said that the officer had the defendant's wallet. Rosado told Mangual that a police officer stopped them because the officer thought they were smoking marihuana. The men tried to explain they were not smoking marihuana. Rosado told her that he (Rosado) said, "[W]e're going to have to shoot him [the officer], because he's going to search us, and he's going to find the guns." Rosado asked Mangual to go to his house to pick up clothes, razor blades, and some other items. Throughout this time, the defendant remained silent.

Later that night, police arrested the defendant with Rosado and two others when they stopped a car near the defendant' apartment. The defendant had a bag with four guns in it--including the .22 and .45 caliber guns used in the killing, and Hanna's State police gun. Further evidence connecting this defendant to the crime included an eyewitness identification of him in the Vega leaving the scene (see infra ), and the defendant's fingerprint on the Vega. In addition, the defendant's wallet was found at the scene of the shooting.

I. Motion to suppress defendant's statements to police. After his arrest, the defendant was taken to the police station where he was interviewed. He answered questions posed by two State police troopers. A Worcester police officer acted as an interpreter during the interview. The defendant made a pretrial motion to suppress his statements on the ground that his statements were involuntary because he was beaten by the police. The defendant also claimed that he did not make an intelligent and knowing waiver of the rights secured by Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). ² Following an evidentiary hearing, the trial judge denied the motion to suppress. The defendant asserts the judge erred in denying the motion because his medical condition was such that he was not capable of making a proper waiver and because the translation into Spanish of the Miranda warnings by a police officer was not adequate to communicate fully the content of the Miranda warnings.

The motion judge made the following findings of fact. The defendant was arrested and brought to the police station at approximately 3:40 A.M. on February 27, 1983. He was in an interrogation room with State police officers Roderick Beaton and Thomas White and Worcester police officer Michael Portuondo. Portuondo acted as an interpreter. Portuondo read an English language Miranda card to the defendant and then translated the warnings on the card into Spanish. Portuondo then showed the defendant the English Miranda card and asked the defendant to sign the card if he understood it and was willing to talk to the police officers. The defendant signed the card. Portuondo then informed the defendant that he could make a telephone call. The defendant declined to do so.

Beaton and White then began asking questions, which were translated into Spanish by Portuondo. The defendant answered in Spanish; Portuondo translated the answers. Beaton recorded "each question and answer as they were received." After approximately one hour, the defendant indicated that he did not wish to answer any further questions, and the interview ended. During the interview, the officers noted that the defendant had a swollen nose which was bleeding slightly. One of the officers provided the defendant with a towel to wipe off the blood. At no time during the interview did the defendant complain of this injury or request medical attention.

While the defendant was being booked, he requested that he be allowed to seek medical attention. The police took the defendant to a hospital emergency room for treatment. The examining doctor found a small cut on the bridge of the defendant's nose and another small cut inside his upper lip, with some swelling in both areas. The doctor cleaned the areas. After a full examination including x-rays, the doctor determined that no further treatment was necessary. The defendant's cuts did not require suturing, medication, dressing, or hospitalization.

In reviewing the judge's ruling on a motion to suppress, we accept the motion judge's subsidiary findings unless there is clear error. We give substantial deference to the judge's ultimate findings. Commonwealth v. Cunningham, 405 Mass. 646, 655, 543 N.E.2d 12 (1989), citing Commonwealth v. Tavares, 385 Mass. 140, 144-145, 430 N.E.2d 1198 cert. denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1356 (1982). We do, however, review the judge's application of constitutional principles to the facts. Commonwealth v. Quigley, 391 Mass. 461, 463, 462 N.E.2d 92 (1984), cert. denied, 471 U.S. 1115, 105 S.Ct. 2356, 86 L.Ed.2d 258 (1985).

The judge's determination that Portuondo succeeded in communicating the Miranda warnings to the defendant is supported by the record. Portuondo learned Spanish at home, where his parents routinely spoke it. Although he was not an official police interpreter, on prior occasions Portuondo had been an interpreter for the Worcester police. At the hearing, defense counsel asked him to repeat in Spanish approximately the same warnings he gave to the defendant on the night of the arrest. He then asked an experienced court interpreter to comment on the translation. The interpreter faulted Portuondo's translation only by asserting that Portuondo had a "heavy Anglo accent" and that he used two words which were not precisely the words used in a Spanish language Miranda card. There is, however, no requirement that a Miranda warning be given in any precise words. California v. Prysock, 453 U.S. 355, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981).

The defendant next claims the warnings were defective because they were delivered and interpreted by a police officer, who may have been biased against the defendant. The defendant suggests that Portuondo may have distorted the meaning of the Miranda warnings because of his police bias. There is no evidence that the warnings delivered by Portuondo were distorted, misleading, or inaccurate.

The defendant also claims that his statement was not voluntary because of his...