Com. v. Ortiz

• Decision Date: 17 December 1984
• Citation: 393 Mass. 523,471 N.E.2d 1321
• Parties: COMMONWEALTH v. Esteban ORTIZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1321

471 N.E.2d 1321

393 Mass. 523

COMMONWEALTH v.Esteban ORTIZ.

Supreme Judicial Court of Massachusetts Essex.

Argued May 9, 1984.

Decided Dec. 17, 1984.

Thomas J. Barrett, Salem, for defendant.

Dyanne Klein Polatin, Asst. Dist. Atty., for the Commonwealth.

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

LIACOS, Justice.

Following the stabbing death of a Lawrence youth at approximately 12:30 A.M. on December 30, 1980, a delinquency complaint was brought in the Lawrence District Court against Esteban (also known as Stephen) Ortiz, who was fifteen years old at that time.After a juvenile transfer hearing, conducted pursuant to G.L. c. 119, § 61, the judge dismissed the juvenile complaint and ordered the issuance of an adult complaint against Ortiz for murder.Subsequently, an Essex County grand jury returned an indictment against the defendant for murder in the first degree.The defendant was convicted of murder in the second degree on April 29, 1982, and was sentenced to the mandatory term of life imprisonment at the Massachusetts Correctional Institution at Walpole.

The defendant timely filed an appeal from his conviction, and we granted direct appellate review.He also appealed from the judge's denial of his motion for a new trial.We transferred that appeal to this court on our own motion.

The defendant raises several allegations of error in the conduct of his trial.First, the defendant contends that the improper admission of a Commonwealth witness's prior reported testimony from the probable cause portion of the defendant's juvenile transfer hearing prejudiced the defendant's right to a fair trial.He next contends that the Commonwealth's "treatment and subsequent prosecution methods influenced" the testimony of several witnesses and deprived him of a fair trial, and that there was insufficient evidence to support the verdict.He also argues that the trial judge abused his discretion in denying the defendant's motion for a new trial.After examining each of the defendant's contentions, we conclude that there was no error.We affirm the conviction and the denial of the motion for a new trial.

At trial, the Commonwealth called as a witness Jose Lara, who was fifteen years old at the time of the homicide.Lara was a friend of Ortiz.Lara lived in a low-income housing project in Lawrence and stated that he knew Miguel Figueroa and Jamie Quinones, who allegedly were present at the scene of the homicide.Lara testified that on the evening of December 29, 1980, he and Figueroa were at the home of a neighbor, Carmen Colon.When asked if Ortiz arrived at the house, Lara responded: "No--I'm going to say it straight, because they going [sic ] to catch me in lie; I'm going to speak out the truth."

On further questioning, Lara admitted that he previously had told police officers, and had testified at the defendant's juvenile hearing, that Ortiz had arrived at the neighbor's house at 9:45 P.M. that evening.At this point, the judge called a recess and asked the witness whether he understood the crime of perjury.Lara said that he did not.The judge explained the substance of the crime to him and appointed counsel for him.

After consulting with his attorney, Lara invoked the Fifth Amendment privilege against self-incrimination.The prosecutor requested that the judge declare Lara to be an unavailable witness.Following an extensive voir dire, the judge found that Lara did not waive his Fifth Amendment privilege by his brief testimony in the present proceedings, and that his testimony at the defendant's juvenile hearing did not constitute voluntary and intelligent waiver.¹The judge further found that, in any event, under Massachusetts law, any waiver of the privilege would not continue at a later and separate proceeding.The judge also determined that Lara's present testimony could tend to incriminate him concerning the offense at issue in the trial, and other offenses, including perjury.²He thus concluded that Lara was an unavailable witness.

Over the objection of defense counsel, the judge granted the Commonwealth's request to admit Lara's testimony at the defendant's juvenile hearing as prior reported testimony.SeeCommonwealth v. Meech, 380 Mass. 490, 494, 403 N.E.2d 1174(1980);Commonwealth v. Gallo, 275 Mass. 320, 328-334, 175 N.E. 718(1931).Cf.Commonwealth v. Bohannon, 385 Mass. 733, 740-749, 434 N.E.2d 163(1982).The judge reasoned that Lara's previous testimony concerned substantially the same issues "for which it would be introduced at this trial," and that the defense counsel at the hearing had "reasonable opportunity" and "similar motivation" to cross-examine Lara.

The substance of Lara's prior reported testimony read to the jury was as follows.On the evening of December 29, 1980, Lara, Ortiz, Figueroa, and Quinones attempted to break into Romeo's Pizza, located near the Merrimack housing project in Lawrence.During this attempted break-in, Robert Larochelle walked by.The four boys chased Larochelle into the hallway of one of the housing projects.There, he was stabbed.Then all the boys ran from the scene.

Lara first claimed that he was keeping watch outside the building and was not in the hallway when the victim was stabbed.He said that he only knew that the victim was stabbed when he heard him scream for help.Lara also initially denied seeing Ortiz attack the victim.The assistant district attorney at the juvenile hearing then confronted Lara with contradictory statements he had made to police officers.³Lara admitted making many of these statements, and finally reaffirmed the crucial substance of them: he did chase the victim into the hallway with the defendant, he participated in a fight which ensued, and then observed Ortiz stab the victim with a knife.⁴

On cross-examination by the defense counsel at the juvenile hearing, Lara did not refute these statements.He did admit, however, that Quinones was not inside the hallway as he had previously stated, but had remained outside the building during the incident.

Other testimony given at the instant trial was as follows.Quinones stated that he was present at the attempted burglary of Romeo's Pizza on December 29, together with Lara, Figueroa, and Ortiz.Quinones said that the victim walked by them, the boys exchanged hostile words, and then the other boys chased him into one of the buildings of the housing project.Quinones did not follow, but ran around to the side of the building.As he was running away, he heard screams from inside the building.

Figueroa was granted immunity at the request of the Commonwealth, but ultimately testified for the defense.He claimed that he was with Ortiz on December 29 until 5:30 P.M. when the defendant left and headed in the direction of his home.Figueroa said that he did not see the defendant again that evening or early the following morning.The witness then went to Carmen Colon's home, where he was joined during the evening by Quinones and Lara.⁵Figueroa stated that he left Colon's house at 11:30 P.M. and went home.Figueroa claimed that he had previously lied to the police officers and before the grand jury in implicating the defendant in the crime because he was scared and confused, and had been told by the police officers that Lara and Quinones had said that he, Figueroa, had stabbed the victim.⁶

The defendant took the witness stand and testified that on December 29he had left the company of Lara and other youths at 7:30 P.M., that he had spent the evening at home, and had gone to bed about 9:30 P.M.The defendant's parents corroborated his testimony by testifying that Ortiz was home when they went to bed and that he was sleeping in bed when his mother checked his room at 12:30 A.M.⁷

The defendant claims that the trial judge erred by admitting the transcript of Lara's testimony at the defendant's juvenile hearing as prior reported testimony.SeeCommonwealth v. Meech, 380 Mass. 490, 494, 403 N.E.2d 1174(1980); proposed Mass.R.Evid. 804(b)(1);Fed.R.Evid. 804(b)(1).Ortiz argues that the judge erroneously ruled that Lara could invoke his privilege against self-incrimination at trial and could become an "unavailable" witness, thereby satisfying the first prerequisite of the prior reported testimony rule.The defendant contends, furthermore, that a similar motive to cross-examine witnesses does not exist at a juvenile hearing and at trial, and thus portions of the former proceeding should not have been admissible as prior reported testimony.

1.We have held that a witness at trial who invokes properly the Fifth Amendment privilege against self-incrimination is unavailable for purposes of the prior reported testimony exception to the hearsay rule.Commonwealth v. Canon, 373 Mass. 494, 499-500, 368 N.E.2d 1181(1977), cert. denied, 435 U.S. 933, 98 S.Ct. 1510, 55 L.Ed.2d 531(1978).Id. at 510-511, 368 N.E.2d 1181(Liacos, J., dissenting).SeeCommonwealth v. DiPietro, 373 Mass. 369, 380, 367 N.E.2d 811(1977).In the present case, the judge correctly ruled that Lara could claim the privilege, since his trial testimony could tend to incriminate him regarding the offense of perjury or of breaking and entering a building in the nighttime with the intent to commit a felony.When Lara testified at the juvenile hearing, he gave two conflicting accounts of the defendant's involvement in the murder.Any further testimony by the witness might demonstrate more clearly and specifically that the witness committed perjury at the prior hearing.Furthermore, Lara's testimony could incriminate him on various felony charges ranging from burglary to murder.

The judge also properly concluded that Lara did not waive his Fifth Amendment privilege at the defendant's trial by testifying at the juvenile hearing.He found that there was no voluntary and intelligent waiver, and supported his ruling by citing Lara's age (fifteen years) and his own...