Com. v. Rosado

• Decision Date: 04 September 1990
• Citation: 408 Mass. 561,562 N.E.2d 790
• Parties: COMMONWEALTH v. Miguel Angel ROSADO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 790

562 N.E.2d 790

408 Mass. 561

COMMONWEALTH v. Miguel Angel ROSADO.

Supreme Judicial Court of Massachusetts,

Worcester.

Sept. 4, 1990.

Nov. 13, 1990.

Andrew L. Mandell, Worcester (Audrey S. Gordon, Framingham with him), for defendant.

Claudia R. Sullivan & Sean J. Gallagher, Asst. Dist. Attys., for the Comm.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and GREANEY, JJ.

WILKINS, Justice.

The defendant Rosado is the third of three defendants to have been tried and convicted of murder in the first degree for the killing of State Trooper George L. Hanna in Auburn on February 26, 1983. This court confirmed the conviction of Jose Colon in an opinion that was released in August. See Commonwealth v. Colon, 408 Mass. 419, 558 N.E.2d 974 (1990). Today, we have confirmed the conviction of Abimael Colon-Cruz. See Commonwealth v. Colon-Cruz, 408 Mass. 533, 562 N.E.2d 797 (1990).

The defendant, represented by new counsel on appeal, has advanced many issues. In addition to asserting substantive errors in certain rulings by the judge, he argues that he was denied the assistance of counsel to which he was constitutionally entitled, that the prosecutor's conduct in various respects denied him due process of law, and that he is entitled to relief under G.L. c. 278, § 33E (1988 ed.). We affirm the conviction.

The evidence in this trial was sufficiently similar to that in the prior trials that a detailed recitation of the facts is not necessary. The defendant with Colon and Colon-Cruz left an apartment in Worcester and traveled to Auburn. Unlike the two prior trials, this trial had no evidence of any criminal purpose the three men may have had when they left the apartment. Trooper Hanna stopped the red Chevrolet Vega automobile in which the three men were traveling and ordered the men out of it. A fight broke out while Hanna was searching the men. Hanna was shot seven times and died at a hospital shortly after the incident. There was evidence that all three men had participated in the attack on Hanna and fled in the Vega. One John Iandoli, Jr., followed the Vega, obtained its license plate number, and observed the three occupants of the vehicle.

Carmen Mangual testified that, after the three men returned to the Worcester apartment, the defendant said that, when Trooper Hanna stopped them, the defendant told the other two that "we're going to have to fire because he's going to search us and he's going to find the gun." Mangual also testified that at the apartment the defendant laughed and said his gun was empty. Mangual's testimony was important to the prosecution's case because it supported other evidence that showed that the defendant participated in the fight with Hanna and was not, as he claimed, merely a bystander.

1. In this case, as in the Colon and Colon-Cruz cases, the defendant challenges the admission of Mangual's testimony because it was given pursuant to an agreement to cooperate with the prosecution. In that agreement, Mangual agreed to testify in all three cases "in accordance with [her] statements dated February 27, 1983 and March 18, 1983." If she did so, the prosecutor in turn agreed to assent to the dismissal of charges against her. That agreement, which in prior opinions we have called a plea agreement, was admitted in evidence without objection, and the defendant did not seek to bar Mangual's testimony on the ground that it would be improperly tainted by the effect of the plea agreement.

The defense's treatment of Mangual's testimony and her plea agreement was substantially the same as the treatment that the defendants gave Mangual's testimony and the plea agreement in the Colon and Colon-Cruz cases. No counsel in any of the three cases objected to the admission of the agreement; no counsel moved to bar Mangual from testifying because of the terms of that agreement; and new counsel have argued on appeal, nevertheless, that her testimony was erroneously admitted. In the two prior cases, the court considered whether the admission of Mangual's testimony created a substantial likelihood of a miscarriage of justice and decided that it did not. See Commonwealth v. Colon-Cruz, supra at 552-553, 562 N.E.2d at 810-811; Commonwealth v. Colon, supra at 443-444, 558 N.E.2d 974. In each instance, the court concluded that the admission of the plea agreement in evidence, the cross-examination of Mangual, defense counsel's closing jury argument, and the judge's jury instructions put Mangual's credibility before the jury in such a way that there was no substantial likelihood of a miscarriage of justice in admitting her testimony. See Commonwealth v. Colon-Cruz, supra 552-553, 562 N.E.2d at 810-811; Commonwealth v. Colon, supra 408 Mass. at 444, 558 N.E.2d 974. We also conclude that there was no likelihood of a miscarriage of justice. ¹

As in the two earlier cases, Mangual's credibility was placed sharply in question. The plea agreement was before the jury as an exhibit. Defense counsel cross-examined Mangual, disclosing that, after consulting a lawyer, she had executed the plea agreement knowing that several charges against her would be dismissed if she complied with the agreement. Mangual was impeached by prior convictions on drug and weapons charges. Although defense counsel did not develop in cross-examination that the agreement did not require Mangual to testify truthfully, he made the point in his closing argument: "Do you get the impression that somebody's trying to keep some evidence from you here? They want to limit her to those statements. They don't want her coming in here and telling the truth." Finally, the judge's charge directed the jury to consider as to any witness: "What rewards or inducements or benefits are flowing to that witness as a consequence of that witness' testimony and, if so, have those promises in any way, in any way affected the credibility of that particular witness?"

In determining whether justice may not have been done, it is instructive in a practical sense that all three defense counsel opted to let Mangual testify subject to the influence of the plea agreement and with that agreement before the jury. They made that tactical choice even though an agreement to testify in a particular way, without reference to the truth, is plainly an improper agreement; is inadmissible over objection; and, over objection, would bar the testimony of a witness who had made such an agreement, as long as that agreement remained in effect. The alternative prospect was that, if Mangual's testimony were to be excluded as long as the plea agreement was in effect, the plea agreement might be terminated and Mangual would still testify, but not pursuant to a plea agreement that expressed no interest in whether her testimony was truthful.

Because Mangual's testimony tied the defendant to active involvement in the joint effort to shoot Trooper Hanna, its admission was not inconsequential to the Commonwealth's case. The potential for untruthfulness in Mangual's testimony was, however, apparent and brought sufficiently to the jury's attention. We, therefore, see no substantial likelihood of a miscarriage of justice where Mangual testified under an agreement that itself placed no obligation on her to tell the truth. ²

2. We consider next and reject the defendant's challenges to various rulings made before, during, and after trial. As to certain of these substantive issues, the defendant has also claimed that his trial counsel's related conduct denied him effective assistance of counsel or that the prosecutor acted improperly, or both. We shall dispose of these contentions in our discussion of the related substantive arguments. ³

a. In Commonwealth v. Colon, supra 408 Mass. at 435-437, 558 N.E.2d 974, we discussed the issue of the judge's denial of Colon's motion for a change of venue based on a claim of prejudicial pretrial publicity. See Commonwealth v. Colon-Cruz, supra 408 Mass. at 551-552, 562 N.E.2d at 810. We need not repeat the governing principles here.

The judge did not abuse his discretion in denying the defendant's similar motion. There was an extensive voir dire of potential jurors. The most recent newspaper article about the crime had been published at the conclusion of the trial of Colon-Cruz, two months before the jury were selected. The record presents very little pretrial publicity that might have been prejudicial and nothing at all to show any empaneled juror was prejudiced by knowledge of the case. Although ten of the sixteen empaneled jurors had heard of the crime and two other defendants had already been convicted in separate trials in Worcester Superior Court of the murder of the victim prior to the trial of this defendant, we see nothing inappropriate in the denial of the defendant's motion for a change of venue.

b. The defendant argues that his motion to dismiss the indictment should have been allowed because of the delay in his trial (from November 15, 1983, until December 19, 1984), caused by interlocutory appellate consideration of the constitutionality of the death penalty statute under which he was charged. See Commonwealth v. Colon-Cruz, 393 Mass. 150, 470 N.E.2d 116 (1984). He bases his argument on Mass.R.Crim.P. 36, 378 Mass. 909 (1979), and on his right to a speedy trial under the State and Federal Constitutions. This court explicitly stated that the judge's interlocutory report of the questions concerning the constitutionality of the death penalty, on the request of the Commonwealth and over the defendant's objection, was appropriate. Commonwealth v. Colon-Cruz, supra at 155, 470 N.E.2d 116. The defendant makes no claim that he was in fact prejudiced by the delay. Indeed, this court's response to the report resulted in the defendant's being relieved, before trial, of the threat of the imposition of the death penalty. The defendant's motion to dismiss was not filed until several months after the decision of this court on the interlocutory report was...