Com. v. Dias

• Decision Date: 13 June 1989
• Citation: 405 Mass. 131,539 N.E.2d 59
• Parties: COMMONWEALTH v. John A. DIAS (and three companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 59

539 N.E.2d 59

405 Mass. 131

COMMONWEALTH v. John A. DIAS

(and three companion cases ¹).

Supreme Judicial Court of Massachusetts Bristol.

Argued Feb. 6, 1989.

Decided June 13, 1989.

Charles W. Rankin, Boston, for John A. Dias.

Mary F. Costello, Boston, for Edward J. Dias.

Cynthia A. Vincent, Asst. Dist. Atty., for the Com.

Before WILKINS, LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

LYNCH, Justice.

The defendants, John A. Dias (John) and Edward J. Dias (Edward), appeal from their convictions, after a joint jury trial, of the murder in the first degree of Frank Rose (by reason of premeditation, extreme atrocity or cruelty, and felony murder), and burglary and armed assault. John also was convicted of larceny of a motor vehicle; that indictment was filed with John's consent. John claims that the trial judge erred in denying a motion to sever the trials; in denying a motion to dismiss due to the Commonwealth's delay in coming to trial; and in the instructions to the jury. He also contends that we should reduce his conviction to murder in the second degree under our general supervisory power found in G.L. c. 278, § 33E (1986 ed.). Edward appeals on grounds of ineffective assistance of counsel because (1) there was no motion to sever, and (2) he was not advised that, in conceding guilt of murder in the second degree, he could still be convicted of felony murder. He also claims that there was error in the charge to the jury and that his statements to police should have been suppressed. We conclude that John and Edward should have been granted separate trials, that dismissal of the indictments against John for failure to grant a speedy trial was not warranted since he acquiesced in some of the periods of delay, and that Edward's statements to the police were properly admitted against him. Since we order new trials for both defendants on grounds that severance was required, we need not reach the remaining issues--for example, those regarding alleged errors in instructions to the jury--which are unlikely to arise at the new trials. ²

We recite some of the facts that the jury could have found, reserving others for discussion in conjunction with specific issues raised. On the morning of November 30, 1984, John and Edward Dias travelled by taxi cab from John's home in Fall River to Somerset. They purchased cigarettes at a convenience store on County Street and then walked toward Dighton, stopping at another store to purchase sandwiches. When they left that store, John and Edward discussed robbing a house nearby, but decided it was too close to the road. They continued walking, stopping at a reservoir one block from the victim's house, where they ate their sandwiches. The defendants continued to discuss robbing a house. The defendants went back to the store where they had bought sandwiches, purchased candy and soda, and then returned to the reservoir area near the victim's house. According to Edward, John wanted to rob Rose's house because John knew there would be money there. According to John, Edward suggested robbing Rose's house, but John protested that Rose knew John because John had worked on Rose's farm. Sometime in the late afternoon the defendants saw Rose drive up to the house, go inside for a short time, then drive away again. The two defendants remained on the hill near Rose's house until evening, when Rose again returned home. Although the defendants' statements differ widely in particulars, they correspond in that, at some point, one of them produced a buck knife; that, at some time well after dark, the defendants went into the victim's house, and that the victim came toward the defendants saying, "I know you." Either Edward or both Edward and John stabbed Rose, after which the two ran out of the house and into some fields nearby where they threw away the knife. After one hour or more had passed the defendants returned to the house, ascertained that Rose was dead, and then stole a television set, some money, and Rose's pickup truck.

A neighbor discovered Rose's body on December 2, 1984; Rose's house had been ransacked. The neighbor telephoned the police, and reported also that Rose's pickup truck was missing. On a tip from an informant, the police located the pickup truck near John's apartment building in Fall River. The police also learned that the cap from the truck had been left at a junk yard by John Dias, his wife, and a young man with blond hair. Police obtained an arrest warrant for John Dias for larceny of a motor vehicle and receiving stolen property. When they arrived at John's apartment building on Rodman Street in Fall River on December 3, they noticed a young man in the hallway who matched the description of John's companion given by both the junk yard operator and neighbors of Frank Rose. The young man identified himself as Edward, John's cousin. The police learned that Edward Dias was wanted on an outstanding warrant, and so arrested him along with John. The defendants were placed in separate rooms at the Fall River police station. Both defendants were fully informed of their constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and each signed a waiver before answering questions from police. At some point, each defendant began to admit to involvement in the robbery and presence at the killing of Frank Rose. Both defendants gave videotaped confessions to police. Each statement, while inculpating the declarant, tended to be more inculpatory of the other man. Neither defendant testified at trial, but both videotaped statements were admitted in evidence. An autopsy of Rose's body indicated that Rose had been stabbed four times in the chest and that two of the wounds were fatal.

1. Severance. The prosecutor's cases against John and Edward Dias rested in large part on the videotaped statements given to police. Each defendant relied in large part on his respective videotaped statement, in which each admitted to reluctant involvement in the robbery and presence at the murder of Frank Rose, but contended that the other codefendant had suggested the robbery of Rose's house and was responsible for Rose's murder. After a hearing, the judge denied John's motion to sever, citing Commonwealth v. Horton, 376 Mass. 380, 380 N.E.2d 687 (1978), cert. denied sub nom. Wideman v. Massachusetts, 440 U.S. 923, 99 S.Ct. 1252, 59 L.Ed.2d 477 (1979), and Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979). ³ The hearsay statements of both defendants were admitted and, despite the judge's decision to have them tried jointly, no instruction was given by the judge limiting the jury's consideration of each statement to the question of the declarant's guilt only. John now argues that the denial of his motion to sever his trial from that of Edward violates his constitutional right to confrontation, since Edward's confession implicating John was admitted in evidence at their joint trial, yet Edward did not take the stand.

The confrontation clause of the Sixth Amendment to the United States Constitution guarantees the right of a criminal defendant "to be confronted with the witnesses against him." At a joint trial of two or more defendants, therefore, the admission in evidence of the extra-judicial statement of a nontestifying codefendant which inculpates another defendant is violative of the latter's right to confrontation under the Sixth Amendment to the United States Constitution. Commonwealth v. Horton, supra 376 Mass. at 388, 380 N.E.2d 687. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). "Ordinarily, a witness is considered to be a witness 'against' a defendant for purposes of the Confrontation Clause only if his testimony is part of the body of evidence that the jury may consider in assessing his guilt. Therefore, a witness whose testimony is introduced in a joint trial with the limiting instruction that it be used only to assess the guilt of one of the defendants will not be considered to be a witness 'against' the other defendants." Cruz v. New York, 481 U.S. 186, 190, 107 S.Ct. 1714, 1717, 95 L.Ed.2d 162 (1987). In Bruton, however, the Supreme Court held that this principle will not be applied to validate, under the confrontation clause, introduction of a nontestifying codefendant's confession implicating the defendant, even with instructions that the jury should disregard the confession in so far as its consideration of the defendant's guilt is concerned. A plurality of the Supreme Court later held that the Bruton rule is inapplicable where "the incriminated defendant has corroborated his codefendant's statements by heaping blame onto himself," Parker v. Randolph, 442 U.S. 62, 73, 99 S.Ct. 2132, 2139, 60 L.Ed.2d 713 (1979), so that the admission of "interlocking confessions with proper limiting instructions" was not violative of the defendant's constitutional rights. Id. at 75, 99 S.Ct. at 2140.

The Supreme Court subsequently rejected the plurality view of Parker v. Randolph, and held that a limiting instruction could not validate the admission of "interlocking" confessions at a joint trial. Cruz v. New York, supra at 193, 107 S.Ct. at 1719. Such an admission, therefore, creates a violation of the Bruton rule. Where a Bruton violation occurs, we apply a stringent test to determine whether the denial of severance can be viewed as harmless beyond a reasonable doubt. Commonwealth v. Sinnott, 399 Mass. 863, 872, 507 N.E.2d 699 (1987). Where no limiting instruction was given and the jury could therefore consider both statements as substantive evidence against both defendants, a clear violation of the confrontation clause exists unencumbered by the distinctions raised in the decisions interpreting and applying Bruton. ⁴

In this case, where there was no opportunity for cross-examination, the videotaped statements of Edward Dias provided the most inculpatory evidence against John on each of the...