Com. v. Rebello

• Decision Date: 27 November 2007
• Docket Number: SJC-09174.
• Citation: 450 Mass. 118,876 N.E.2d 851
• Parties: COMMONWEALTH v. Raymond Rios REBELLO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

876 N.E.2d 851

450 Mass. 118

COMMONWEALTH v. Raymond Rios REBELLO.

SJC-09174.

Supreme Judicial Court of Massachusetts, Hampden.

Argued September 7, 2007.

Decided November 27, 2007.

Leslie W. O'Brien, Boston, for the defendant.

Jane Davidson Montori, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, COWIN, CORDY, & BOTSFORD, JJ.

BOTSFORD, J.

After a trial that resulted in a hung jury, the defendant was convicted at a second trial on two indictments charging him with being an accessory before the fact to murder in the first degree on a theory of deliberate premeditation.¹ Represented by new counsel, he appeals from these convictions and from the denials of two motions for a new trial. The defendant claims on appeal that (1) omissions and misstatements by the prosecutor, not adequately explored or corrected by defense counsel, misled the jury about the inducements to the key prosecution witness; (2) the trial judge erroneously admitted irrelevant and inflammatory evidence of the defendant's prior bad acts; and (3) the judge also committed error by denying him discovery and an evidentiary hearing on his second motion for a new trial. We reject the defendant's claims and affirm the convictions. After reviewing the entire record pursuant to G.L. c. 278, § 33E, we also decline to exercise our authority to reduce the verdict or grant other relief.

1. Background. The Commonwealth presented evidence that would permit the jury to find the following. In 1991, Pedro Ramos was the leader of a large drug operation in the city of Holyoke. The defendant was affiliated with Ramos's organization as a mid-level manager who obtained drugs (heroin and cocaine) from Ramos and distributed them to street-level sellers.

The victims, Guillermo Santiago and Angel Carcano, were acquainted with Ramos, but they were not directly involved with the Ramos drug operation. Santiago lived in the same apartment building in Holyoke where Ramos had set up his operation in two adjacent apartments. Santiago, often helped by Carcano, had done repair work on one of Ramos's vehicles.

Jose Pacheco was a good friend of Santiago and also acquainted with Ramos, but also not part of the Ramos drug enterprise. He occasionally worked with Santiago and Carcano fixing vehicles. Pacheco was the Commonwealth's key witness at trial.

On August 15, 1991, nine days before the murders, police executed search warrants at Ramos's two apartments, seizing large amounts of "crack" cocaine, drug processing paraphernalia, and firearms. They arrested Ramos and several of his associates found in one of the apartments.

Ramos and others associated with his organization, including the defendant, came to believe that Santiago and Carcano had tipped off the police about the drug operation in the two apartments. In retaliation, an order went out to kill both men, and the defendant took it on himself to carry out the order. To that end, he recruited two people, Iran Diaz and Fernando Rivera, to carry out the murders, and obtained Pacheco's assistance in luring the victims to their fate.

Pacheco testified to the following at trial. He twice ran into the defendant by chance in the days preceding the murders, and at those encounters the defendant communicated his intent to kill the victims for Ramos; Pacheco told him that he wanted nothing to do with such a plan. On the second encounter, however, Pacheco drove the defendant to a place where he knew Santiago and Carcano would be so that the defendant could see them and would know what they looked like.

Pacheco encountered the defendant a third time late on the night of August 23 or early in the morning of August 24, 1991, and, at the defendant's request, drove the defendant, Diaz, and Rivera to a 7-Eleven store in Holyoke. Once at the store, the defendant instructed Pacheco to find and bring back Santiago and Carcano, threatening Pacheco and his family with death if he did not cooperate. Pacheco drove to Santiago's apartment building, found Santiago and Carcano at the back of the building, and invited them to accompany him to "get high." The two joined Pacheco in his vehicle. On the drive back to the 7-Eleven, Pacheco attempted to warn them of the danger they were in, but, he said, they were too drunk to take him seriously.

On Pacheco's return to the 7-Eleven, Diaz and Rivera entered his car, joining Santiago and Carcano. The defendant did not get into the vehicle but confirmed that Diaz and Rivera had the "9" (handgun) and repeated his threat to Pacheco. Under direction from Diaz and Rivera and at gunpoint, Pacheco drove to a loading dock in an industrial area in Holyoke where Diaz and Rivera pushed the two victims from the car and ultimately shot them.

Diaz, Rivera, and Pacheco were each indicted on two charges of murder in the first degree and two charges of conspiracy to commit murder; the defendant and Ramos were indicted as accessories before the fact on two charges of murder in the first degree and also on charges of conspiracy.²

Different parts of Pacheco's testimony were corroborated at trial by a number of witnesses: Pedro Figueroa, who testified that he was with Pacheco during some of his encounters with the defendant in the week before the murders; Leo Ortiz, who spent time with Pacheco immediately after the murders; and Yolanda Reyes, Diaz's girl friend, who testified that Diaz, Rivera, and the defendant had returned to her apartment in the early morning hours of August 24 in a "bragging" mood. Pacheco's account of the details of the murders was also consistent with the forensic evidence presented by the Commonwealth's expert witnesses.

The defendant's second trial took place in January, 1993. In late 2003, the defendant's present counsel entered an appearance on his behalf in the Superior Court, and filed a motion for a new trial soon thereafter.³ The judge who had presided over the defendant's trial conducted an evidentiary hearing on that motion and issued a decision denying it in November, 2005; the defendant filed a timely notice of appeal. In March, 2006, the defendant filed in this court a second motion for a new trial that was referred to the trial judge and later denied by her without a hearing. The defendant's appeals from his convictions and from these two denials of his new trial motions have been consolidated for review.

2. Discussion. a. Standard of review. As in the case of a defendant convicted of murder in the first degree, one convicted as an accessory before the fact to murder in the first degree is entitled to review under G.L. c. 278, § 33E. See Commonwealth v. Francis, 432 Mass. 353, 354 n. 1, 734 N.E.2d 315 (2000); Commonwealth v. Angiulo, 415 Mass. 502, 509-510, 615 N.E.2d 155 (1993).

b. Alleged inducements to the key witness. There is no disagreement that the Commonwealth has an obligation to disclose the terms of any agreement, promise, or inducement proffered to a testifying witness before trial, and that a failure to do so may violate the defendant's right to due process. See, e.g., Commonwealth v. Birks, 435 Mass. 782, 787, 762 N.E.2d 267 (2002). The defendant claims that he was denied his right of confrontation at trial because the prosecutor misled the jury concerning the terms of the Commonwealth's agreement with its key witness, Jose Pacheco. As a result, he says, the jury were not given the correct and necessary information with which to make a fair assessment of Pacheco's credibility.

The defendant presents this claim in two sections: (1) the prosecutor misled the jury by indicating that Pacheco would be tried on the murder charges pending against him, even though the prosecutor must have known that this was not likely to occur; and (2) the prosecutor permitted Pacheco to obfuscate the terms of the cooperation agreement between them, an error that the defendant's counsel failed to correct. The implicit underpinning of both sections is the contention that there was an undisclosed, tacit agreement between Pacheco and the Commonwealth that contemplated the dismissal of the charges against Pacheco after he testified at the trials of his various codefendants. We address this underlying contention first.

Before testifying as a witness in any of the trials, Pacheco had entered into a written agreement with the Commonwealth that stated: "Your cooperation will be taken into consideration by this office. Your complete and truthful testimony will benefit you upon disposition of your case. It is our intention to treat you fairly." The Commonwealth provided the defendant's counsel with a copy of this agreement in discovery long before his trials. However, the defendant asserts this written agreement did not represent the entire understanding between Pacheco and the Commonwealth. The defendant points to the following facts: only five weeks after the defendant's second trial, the attorney representing Pacheco on the indictments against him moved to dismiss the charges; the prosecutor mounted, in the defendant's words, only a "pro forma" objection to that motion; and when the motion was thereafter allowed, the Commonwealth did not appeal from the ruling. In the defendant's view, these events convincingly support the existence of a secret agreement between Pacheco and the Commonwealth concerning the disposition of Pacheco's charges at the time of the defendant's trial.

The difficulty confronting the defendant here is that the judge, after an evidentiary hearing on the defendant's new trial motion, specifically found there was no tacit or sub rosa agreement between Pacheco and the Commonwealth, and that "[w]hat was brought to the jury's attention in the defendant's case was that which the Commonwealth had [in fact] promised to Pacheco in exchange for his testimony." The judge found "highly credible" the testimony provided by both Pacheco's attorney and the assistant district attorney about the events leading up to the dismissal of the indictments...