Com. v. Perez

• Decision Date: 20 November 1991
• Citation: 411 Mass. 249,581 N.E.2d 1010
• Parties: COMMONWEALTH v. Norman Javier PEREZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1010

581 N.E.2d 1010

411 Mass. 249

COMMONWEALTH v. Norman Javier PEREZ.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Sept. 9, 1991.

Decided Nov. 20, 1991.

Lawrence R. Glynn, Cambridge, for defendant.

Patricia M. Darrigo, Asst. Dist. Atty., for the Com.

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

GREANEY, Justice.

A jury in the Superior Court convicted the defendant of murder in the first degree by reason of deliberately premeditated malice aforethought and extreme atrocity or cruelty. On appeal, the defendant argues that the trial judge erroneously admitted in evidence: (1) statements that were obtained from him by police in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); and (2) statements made by him to a witness who testified for the Commonwealth. We affirm the conviction, and find no basis for granting relief pursuant to G.L. c. 278, § 33E (1990 ed.).

The Commonwealth presented evidence at trial that permitted the jury to find the following facts. On or around August 26, 1987, two or three days before the murder, the defendant made a telephone call to Wanda Rodriguez. The defendant told Rodriguez that a person named "Tullene" had offered to pay the defendant $5,000 and provide him with drugs if the defendant would kill someone. The defendant did not tell Rodriguez the identity of the intended victim. Rodriguez knew that "Tullene" was a nickname of one Angel Kipp.

On August 29, 1987, the day of the murder, the defendant came to the apartment building where the victim, Angel "Shorty" Cruz, lived with his girl friend, Clarissa Otero. Otero looked out the window and watched as the defendant stood out in front of the building, calling out the victim's name. The victim did not come out of his apartment, and after a short time, the defendant departed. Fifteen minutes later, at approximately 5 P.M., the victim and his girl friend left their apartment, drove around the neighborhood for a few minutes, then arrived at the apartment of two friends, Lori Lynn and Raymond Devarie. Lynn and Devarie lived on the third floor of a three-story building on Decatur Street in Lowell, in apartment no. 6. Lynn's brother Edgar was also there, sleeping on the living room couch.

Approximately five minutes after the victim and Otero arrived at Devarie's apartment, the defendant walked past three owners of the apartment building, who were working in the adjoining parking lot, and entered the building through the side entrance. The defendant then knocked on the rear door of an apartment on the first floor, and spoke to the tenant who answered the door. This tenant took the defendant up the rear stairs to the third floor, then returned to his first-floor apartment.

Once on the third floor, the defendant knocked on the rear door of apartment no. 6. Lynn answered, and the defendant asked whether Devarie lived there. When Lynn indicated that he did, the defendant asked for the victim. The victim heard the defendant and Lynn, walked to the rear door and joined the defendant in the rear hallway. Lynn partially closed the door after him. The victim then shouted at the defendant; the victim was angry that the defendant had come looking for him at Devarie's apartment. Very soon after the victim went into the hallway, the defendant shot him four times, in the forearm, chest, head, and back. There was testimony that either the wound to the chest or the one to the head alone would have been sufficient to cause the victim's death.

After shooting the victim, the defendant walked back down the rear stairway, and out the side door, passing the owners of the building. He sped away in a white car driven by Kipp.

A few days after the shooting, the defendant again telephoned Rodriguez, and told her he was calling from Florida. The defendant asked Rodriguez, "Do the cops know I did it?" She replied, "Of course." When Rodriguez asked how the defendant could have done this to the victim's girl friend, he responded that he had needed money. When Rodriguez asked him what he would do, he said he would either turn himself in or kill himself.

1. Miranda issues. Following the murder, the defendant was questioned by the police while he was held in a Puerto Rican prison, and again after he had been returned to Lowell. The defendant filed a motion to suppress his statements, alleging that they were 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). The judge heard evidence on the motion and denied it. On appeal, the defendant argues that (1) cards containing the Miranda warnings in Spanish did not adequately advise him of his rights because the Spanish version of the warnings was incomplete and inaccurate; (2) providing him with cards containing Miranda warnings in Spanish was insufficient, without regard to the contents of the cards, in the absence of an inquiry into the defendant's ability to read Spanish; and (3) the testimony of a police officer who did not understand Spanish that another police officer read the Miranda warnings to the defendant in Spanish was insufficient to establish that fact.

The judge made the following written findings of fact in connection with the motion to suppress. On September 28, 1987, Inspector Brendan Durkin of the Lowell police and State Trooper William Flynn went to Puerto Rico where they met with the defendant, who was a prisoner at Rio Piedra Prison. At the prison Durkin and Flynn were accompanied by a Puerto Rican prison officer. Durkin gave the defendant a card containing the Miranda warnings in Spanish. The defendant read the card and indicated in English that he understood his rights. Durkin then asked the Puerto Rican officer to read the card aloud to the defendant in Spanish, after which this officer asked the defendant in Spanish whether he understood his rights. The defendant responded in English that he did. On request, the defendant signed the card containing the Miranda warnings. The defendant's signature was witnessed by Durkin, Flynn, and the Puerto Rican officer. Durkin then proceeded to interrogate the defendant, who at first denied any knowledge of the homicide. Later, however, the defendant stated that he had been present when the murder occurred, but that another "hombre" did the shooting. ¹ At no time during this questioning did the defendant ask for an attorney or an interpreter, but a few times he looked to the Puerto Rican officer for a translation of some of Durkin's questions. Throughout the questioning, the defendant spoke in "broken" English and was responsive and coherent.

A riot at Rio Piedra Prison caused the questioning to terminate after about one hour. Durkin asked the defendant whether the officers could speak to him the next day. The defendant assented. The defendant then asked for an attorney. However, due to the prison riot, the prison officials would not allow Durkin and Flynn to visit the defendant the next day.

On September 30, 1987, Durkin and Flynn returned to the prison to see the defendant. Flynn advised the defendant of his Miranda rights and the defendant signed the Miranda card. The defendant stated he did not want to talk, and indicated that he wanted an attorney. Durkin and Flynn left without any questioning.

On the evening of March 31, 1988, the defendant was extradited from Puerto Rico to Massachusetts on a Governors' executive agreement. Durkin, accompanied by Officer John Guilfoyle of the Lowell police, went to Logan International Airport and met the State police who had the defendant in custody. The defendant was transported to the State police office at the Middlesex County Superior Court in Cambridge, where he was turned over to the Lowell police. There was no interrogation during the drive from Cambridge to the Lowell police department.

After booking at the Lowell police department, the defendant was given a card containing the Miranda warnings in Spanish. The defendant read the card, said he understood the warnings, and signed the card at about 12:15 A.M. on April 1, 1988.

He was then interrogated. During this interrogation, which lasted about three hours, the defendant refused food but did take some beverages. The defendant admitted that he had been with the victim at the time of the shooting, that he and the victim had argued, but again repeated his story that another man had shot the victim. ² At no time did the defendant ask for a lawyer or an interpreter, and he did not indicate that he wanted the questioning to stop.

About noon on April 1, 1988, the defendant was again interviewed by Durkin, who was accompanied on this occasion by Inspector Hilda Fernandez, a Spanish speaking member of the narcotics squad of the Lowell police. The defendant was given a card containing the Miranda warnings in Spanish. He read the card, again stated he understood it, and signed the card. Fernandez was brought to the interrogation because of drug trafficking implications of the killing. During the interview, the defendant denied that Angel Kipp had been involved in the murder and repeated his earlier version of the incident, namely, that while he was with the victim in the hallway, another person had appeared and shot the victim. ³ Later, the defendant asked for an attorney and the questioning was terminated.

Based on these findings (which are supported by the evidence), the judge concluded that the defendant had been properly advised of his Miranda rights, had knowingly and intelligently waived those rights, and had given voluntary statements on all occasions to the police.

We reject the defendant's contention that he was misinformed of his rights because the Spanish translations on the various Miranda cards which were given to him were incomplete and...