Com. v. Colon

Decision Date22 May 2007
Docket NumberNo. SJC-08992.,SJC-08992.
Citation866 N.E.2d 412,449 Mass. 207
PartiesCOMMONWEALTH v. Raymond COLON.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Janet H. Pumphrey for the defendant.

Katherine E. McMahon, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, COWIN, & CORDY, JJ.

IRELAND, J.

In June, 2001, the defendant, Raymond Colon, was found guilty of murder in the first degree on the theory of deliberate premeditation.1 He also was found guilty of unlawful possession of a firearm, G.L. c. 269, § 10 (a) and (d), and unlawful possession of a firearm or ammunition without an identification card, G.L. c. 269, § 10 (h).2 The defendant appealed. He filed a "renewed motion" for a required finding of not guilty (or alternatively for a new trial) pursuant to Mass. R.Crim. P. 25(b), 378 Mass. 896 (1979), which was denied. In 2005, the defendant filed a motion for a new trial pursuant to Mass. R.Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001), which the trial judge denied. The defendant appealed. In his appeal, through new counsel, he claims that his motion to suppress should have been granted, his trial counsel provided ineffective assistance, and the prosecutor argued facts not in evidence during closing argument. In a pro se brief, see Commonwealth v. Moffett, 383 Mass. 201, 207-209, 418 N.E.2d 585 (1981), the defendant claims ineffective assistance of counsel and error in the jury instructions on the weapons charges. Through counsel, the defendant further requests that we exercise our authority under G.L. c. 278, § 33E, to reduce his conviction to manslaughter or grant a new trial. Because we conclude that the defendant's claims of error are without merit or do not create a substantial likelihood of a miscarriage of justice and discern no basis to grant relief under G.L. c. 278, § 33E, we affirm his convictions and the denial of his motion for a new trial.3

Background. 1. The Commonwealth's case. We summarize the facts that the jury were warranted in finding, reserving certain details for our discussion of the issues. Prior to the murder on July 7, 1999, the defendant and the victim had been friends and partners in a drug-dealing operation in Holyoke. However, "bad blood" developed between them resulting from a dispute over money that the defendant allegedly owed the victim.

At approximately 3 P.M. on July 7, the victim was speaking with his girl friend, who was standing in front of 132 Sargeant Street in Holyoke. The defendant and his brother Eliott drove by and gave the victim a "hard look." Although it is not entirely clear from the record, it is important to note that the intersection of Chestnut Street and Sargeant Street is near 132 Sargeant Street, and there is a park across from 132 Sargeant Street, on the opposite side of Chestnut Street.

At some point that same day, the victim and two other people drove down Sargeant Street in a Toyota automobile and parked on the corner of Sargeant and Chestnut Streets. At that time, two of the defendant's brothers, David and Eliott, also appeared on Sargeant Street, carrying baseball bats. They approached the car and started swinging the bats. The victim got out of the vehicle and started backing up toward the park, telling David and Eliott to "chill" and to put their bats down so that he could fight them. Eliott advanced toward the victim, and one of the victim's companions, whose nickname was Flaco, pulled out a knife. David and Eliott told Flaco that "this thing" did not have to do with him and to get out of the way, which Flaco did. The victim had his hands in the air, and he was not holding anything. David and Eliott followed him into the park. The victim was in the park arguing with David and Eliott when the defendant entered the park. The victim's hands were still empty. When the defendant pulled a revolver out of his waistband, the victim ran. The defendant advanced on the victim and shot him from a distance of approximately five feet.

After the first shot, the victim grabbed his side and attempted to run away, but the defendant shot him two more times. The victim sustained gunshot wounds to his back, arm, and thigh. The victim ran out of the park and into the apartment of Pedro Gonzalez, a mutual friend of the defendant and the victim which was located on the fourth floor of 304 Chestnut Street, where he collapsed on the floor. The bullet that entered the victim's back and passed through his chest was ultimately fatal.

Police learned that the defendant and his brothers were seen running into 306 Chestnut Street. At approximately 7 P.M. they found the defendant (and his brothers) inside the defendant's girl friend's apartment, and the defendant was taken into custody. The defendant made statements to the police at the time of his arrest to the effect that he was the shooter and that his brothers had not shot the victim. Police secured the apartment and returned during the early morning hours of July 8 with a search warrant. They recovered a revolver, an aluminum baseball bat, and a broken baseball bat. The gun and photographs of the bats were admitted in evidence at trial along with a spent projectile recovered from the second-floor landing at 304 Chestnut Street. The projectile matched the gun that was recovered.

2. The defendant's case. At trial, the defendant did not deny shooting the victim. However, he claimed he was acting in self-defense and defense of his brothers. We view the evidence pertinent to self-defense and defense of others in the light most favorable to the defendant. See Commonwealth v. Brum, 441 Mass. 199, 204, 804 N.E.2d 902 (2004); Commonwealth v. Pike, 428 Mass. 393, 395, 701 N.E.2d 951 (1998).

The defendant's trial testimony consisted of two parts. The first part concerned his relationship with the victim and the victim's history of violent behavior. The defendant met the victim in 1995 and became involved in the victim's drug business. The victim, who was described at trial as a "big man" who was over six feet tall, controlled "his area" of Holyoke through fear by beating up people who attempted to encroach on it. The defendant witnessed several of the beatings, including the beating of Francisco Marrerro, who was called as a corroborating witness. The victim owned several handguns, which were stored in a "ceiling trap" located on the fourth-floor landing of 304 Chestnut Street, near the apartment where Gonzalez lived.4 After the tension arose between the defendant and the victim, the defendant began sneaking into his girl friend's apartment when he visited in order to avoid a confrontation with the victim.

The defendant saw the victim in May, 1999, and an argument ensued, during which the victim punched the defendant in the face and continued to hit him until a friend broke up the fight. The defendant did not hit the victim during the fight. The defendant again avoided the victim but, on July 4, he encountered the victim while driving down Chestnut Street. The victim told the defendant, "Get out the car so I can whip your ass like I did you brother," and that he would "whip both of your asses." One witness testified that on July 4, the victim told her that he was going to shoot the defendant's brother and make the defendant watch.

The second part of the defendant's testimony concerned events on the day of the murder. The defendant testified that on the afternoon of July 7, he encountered the victim on Commercial Street in Holyoke. Both men were driving automobiles, and the victim began to chase the defendant until the vehicle the defendant was driving crashed into another vehicle. Later that afternoon, the defendant and his brothers walked to 304 Chestnut Street to speak with Gonzalez about contacting a mutual acquaintance of the victim and defendant, who the defendant thought could resolve the animosity between them. The defendant entered Gonzalez's apartment and gave Gonzalez the acquaintance's pager number. Gonzalez testified that he realized that the defendant was planning to confront the victim, and he tried to talk the defendant out of doing so by telling the defendant that the victim was armed. Gonzalez tried the pager number more than once, but received no response. While Gonzalez was making the telephone calls, the defendant went into the hallway and took a gun from the storage area in the ceiling. The defendant entered Gonzalez's bedroom and placed the gun on Gonzalez's dresser.

The defendant then looked out the window and saw that a fight was developing between his brothers and the victim. The defendant asked Gonzalez what type of gun the victim had, and Gonzalez responded that he did not know. The defendant again asked Gonzalez if he was sure the victim was armed, and Gonzalez answered affirmatively. The defendant put the gun that he had obtained in his waistband and went outside.

He testified that he saw Flaco standing between the victim and Eliott with a knife and told Flaco to put the knife down. He stated that he was leading Eliott away from the victim. He also testified that he heard the victim say to his brothers, "I'm going to whip all of your asses." The victim started walking toward the defendant, saying, "Motherfucker, I'm going to blow your ass away." The defendant backed up. The victim reached for the door of his car, and the defendant, because he had been told that the victim was armed, assumed he was going for a gun. The defendant pulled out his gun and shot the victim.

Gonzalez testified that when the wounded victim entered his apartment, he asked Gonzalez to "get his gun." Gonzalez testified that he was loading the gun when the victim collapsed.

3. Rebuttal. The Commonwealth called three witnesses in rebuttal who all provided testimony about the car crash that the defendant was involved in during the afternoon of July 7, suggesting that there was not another vehicle close behind the defendant's car prior to the crash...

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