Com. v. Rivera

• Decision Date: 13 February 1997
• Citation: 424 Mass. 266,675 N.E.2d 791
• Parties: COMMONWEALTH v. Luis Fernando RIVERA, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 791

675 N.E.2d 791

424 Mass. 266

COMMONWEALTH v. Luis Fernando RIVERA, Jr.

Supreme Judicial Court of Massachusetts,

Hampden.

Argued Nov. 7, 1996.

Decided Feb. 13, 1997.

James A. Couture, Belchertown, for defendant.

Jane Davidson Montori, Assistant District Attorney, for Commonwealth.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY and MARSHALL, JJ.

ABRAMS, Justice.

Convicted on two indictments charging murder in the first degree and on one indictment charging unlawful carrying of a firearm, the defendant, Luis Fernando Rivera, Jr., appeals claiming that: (1) the judge improperly denied his motion to suppress; (2) the Commonwealth improperly interfered with his right to interview witnesses; (3) the judge erred in admitting evidence regarding a drug organization of which the defendant was not a member; (4) the prosecutor made improper prejudicial statements during his closing argument; and (5) the judge erred in refusing to instruct the jury regarding the Commonwealth's failure to test for gunpowder residue. The defendant also asks that we exercise our power under G.L. c. 278, § 33E, to order a new trial. We affirm the convictions and decline to exercise our power under § 33E in favor of the defendant.

The evidence in the light most favorable to the Commonwealth, Commonwealth v. Salemme, 395 Mass. 594, 595, 481 N.E.2d 471 (1985), showed that Pedro Ramos, the head of an extensive drug organization in Holyoke, ordered the killing of two persons to avenge wrongs which Ramos believed those persons had committed against him and his operation. One had assisted the police in the preparation for the execution of several search warrants which had led to the seizure of extensive physical evidence and to the arrest of Ramos and several other members of his drug organization. ¹

The evidence warranted the jurors' concluding that a member of Ramos's drug organization planned the murders and hired the defendant to carry out Ramos's order. The girl friend of one of the victims told police about an eyewitness, who, in turn, waived his Miranda rights and gave a detailed statement implicating the defendant and others in the murders. The police arrested the defendant based on this information. The eyewitness ² said that he was ordered to drive the two victims, the defendant, and a co-defendant Iran Diaz, ³ to the scene of the murders. The eyewitness said that the victims were dragged from the vehicle, and that the defendant shot one victim in the chest. That victim died within minutes. The other victim attempted to flee, and Diaz shot him in the back. The victim fell to the pavement but was still alive and trying to crawl away. The defendant alerted Diaz, and Diaz then shot the victim several times.

1. Motion to suppress. The defendant claims error in the denial of his motion to suppress a statement made to the police. He argues that the police improperly obtained the statement by questioning him after he had asserted his Miranda rights during the booking process.

At the hearing on the motion to suppress, the booking officer who had advised the defendant of the Miranda warnings initially said that he had asked the defendant if he understood the warnings and waived them. That officer initially said that the defendant replied in the negative. However, on recall, the officer testified that he had responded incorrectly because he had been confused about the questions. The officer then amended his testimony, stating that he never had asked the defendant about waiver, and therefore had marked "no" on the portion of the booking sheet regarding a Miranda waiver. That procedure was meant to indicate that the booking officer never obtained a waiver from the defendant. The officer explained that it is not the responsibility of booking officers to interrogate defendants or to ask them if they wish to make statements.

During the booking process, the defendant never asked for an attorney, the defendant was not questioned about the crimes for which he was arrested, and he did not make any statements about the crimes. After the booking process was completed, the defendant was placed into a cell. Three and one-half hours later, other police officers questioned the defendant and obtained the statement at issue. However, before any questioning ensued, these officers first administered a fresh set of Miranda warnings, and the defendant expressly waived his rights.

The motion judge found beyond a reasonable doubt that the defendant had knowingly, willingly, and intelligently waived the Miranda warnings, and that the statement the defendant made after receiving Miranda warnings was voluntary. The judge credited the booking officer's amended testimony and found that the defendant did not assert his rights during the booking process. The defendant claims that the judge's determination was clearly erroneous in light of the discrepancy in the booking officer's testimony. We disagree.

"In reviewing a judge's determination regarding a knowing waiver of Miranda rights and voluntariness, we 'grant substantial deference to the judge's ultimate conclusions and we will not reject a judge's subsidiary findings if they are warranted by the evidence.' " Commonwealth v. Shine, 398 Mass. 641, 651, 500 N.E.2d 1299 (1986), quoting Commonwealth v. Benoit, 389 Mass. 411, 419, 451 N.E.2d 101 (1983). The motion judge specifically determined that the booking officer's amended testimony and the explanation given for the discrepancy was "entirely credible." The question is clearly one of credibility for the finder of fact. We do not substitute our judgment for that of the fact finder. See Commonwealth v. Mello, 420 Mass. 375, 384, 649 N.E.2d 1106 (1995).

The motion judge alternatively found that even if the defendant had invoked his rights during the booking process, in the totality of the circumstances, "the passage of time and the fresh set of Miranda warnings would be sufficient to create a valid waiver." We agree. As the judge correctly noted, there is no per se rule proscribing the resumption of questioning after a defendant has invoked his or her right to be free from interrogation. See Michigan v. Mosley, 423 U.S. 96, 102-103, 96 S.Ct. 321, 325-26, 46 L.Ed.2d 313 (1975); Commonwealth v. Watkins, 375 Mass. 472, 479, 379 N.E.2d 1040 (1978). The proper inquiry in such circumstances is whether the defendant's right to silence or to counsel, once invoked, was "scrupulously honored" before questioning resumed. Mosley, supra at 104, 96 S.Ct. at 326-27. Commonwealth v. Atkins, 386 Mass. 593, 598, 436 N.E.2d 1203 (1982). The motion judge was warranted in concluding that this requirement was satisfied because the booking officer never questioned the defendant, and other officers did so only after three and one-half hours had passed. Those officers had administered a fresh set of Miranda warnings, and the defendant had waived his rights in writing. See, e.g., Commonwealth v. Santo, 375 Mass. 299, 304, 376 N.E.2d 866 (1978). There was no error.

2. Right to access to witnesses. The defendant contends that the Commonwealth impermissibly interfered with his access to three witnesses who testified for the prosecution, thereby infringing on his right to prepare a defense and, in turn, his right to a fair trial. See Commonwealth v. McMiller, 29 Mass.App.Ct. 392, 407-409, 560 N.E.2d 732 (1990). For security purposes, the Commonwealth kept secret the addresses of its witnesses, including Pedro Figuero, Yolanda Reyes, and David Soto, during the pendency of the trial. ⁴ Arrangements were made to afford the defendant's counsel and investigator the opportunity to communicate and talk with the witnesses by telephone through the district attorney's office.

When telephoned, Figuero told the defendant's investigator that he did not want to speak to defense counsel and the investigator. Reyes met with defense counsel in person at the district attorney's office and initially indicated that she was willing to speak to him and the investigator alone. However, after the prosecutor met privately with Reyes to explain her rights as a witness, Reyes then indicated that she wanted the prosecutor to attend the interview with her. Defense counsel refused to agree to these conditions and left the office without speaking to Reyes. Soto initially spoke to defense counsel over the telephone, answering some questions and refusing to answer others, but shortly after a brief interruption by the district attorney, Soto terminated the interview. We note that while under oath, Soto stated on the record that he was "through answering questions" when the district attorney entered the office.

At defense counsel's request, the trial judge engaged in a colloquy first with Reyes and then with Soto in accordance with Commonwealth v. Carita, 356 Mass. 132, 142-143, 249 N.E.2d 5 (1969). The judge clearly communicated to Reyes and Soto that defense counsel's wish was to interview them privately. ⁵ After the judge had advised them of their rights as witnesses, both Reyes and Soto indicated that they were willing to speak with defense counsel and his investigator, but only in the presence of a representative of the district attorney's office. Defense counsel then conducted interviews of both witnesses in the presence of a representative of the district attorney's office.

It is clear that defendants are entitled as of right to access to witnesses who are in the custody of the Commonwealth. Commonwealth v. Balliro, 349 Mass. 505, 516, 209 N.E.2d 308 (1965). That right encompasses the opportunity for an interview. See Commonwealth v. Campbell, 378 Mass. 680, 699, 393 N.E.2d 820 (1979). Witnesses may grant or refuse an interview with defense counsel as they so choose. If they decide to let defense counsel interview them, they have "the right to impose reasonable conditions on the conduct of the interview." See G.L. c. 258B, § 3(m). ⁶ We conclude that Reyes's and Soto's insistence on the presence...