Commonwealth v. Carr

• Decision Date: 16 April 2013
• Docket Number: SJC–10284.
• Citation: 464 Mass. 855,986 N.E.2d 380
• Parties: COMMONWEALTH v. Rodolfo CARR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

464 Mass. 855
986 N.E.2d 380

COMMONWEALTH
v.
Rodolfo CARR.

SJC–10284.

Supreme Judicial Court of Massachusetts,
Suffolk.

Argued Dec. 7, 2012.
Decided April 16, 2013.

[986 N.E.2d 386]

Russell C. Sobelman, Lynn, for the defendant.

Amanda Teo, Assistant District Attorney (Edmond J. Zabin, Assistant District Attorney, with her) for the Commonwealth.

Present: IRELAND, C.J., SPINA, BOTSFORD, GANTS, & LENK, JJ.

LENK, J.

[464 Mass. 857]On December 15, 2004, a Superior Court jury convicted the defendant of murder in the first degree on a theory of deliberate premeditation for the fatal shooting of Carlos Matos on August 5, 1974. Although a murder complaint issued against the defendant shortly after the victim's death, the defendant fled the Commonwealth and was not indicted until 1997. In the interim, he was charged, inter alia, with numerous drug crimes in Indiana and Illinois under various aliases. The Commonwealth again learned of the defendant's whereabouts in 1994, while he was incarcerated in an Indiana state prison. In 1997, the defendant waived extradition and was returned to Massachusetts.

On appeal, the defendant claims error in a number of respects. He asserts that his motions to dismiss for violations of his constitutional right to a speedy trial, impairment of the integrity of the grand jury, and loss of evidence, as well as his motion for funds to retain an identification expert, should not have been denied. He maintains that the trial judge erred in denying his motion to suppress statements he made to Boston police officers while incarcerated in Indiana, and also that there were multiple errors in the judge's evidentiary rulings. Additionally, the defendant claims that his trial counsel was ineffective. We affirm the conviction and decline to exercise our power under G.L. c. 278, § 33E, to reduce the degree of guilt or to order a new trial.

[986 N.E.2d 387]

Background. Based on the evidence admitted at trial, the jury could have found the following. On August 5, 1974, the defendant, then twenty years old, and the victim, who was fourteen years old, were involved in a physical altercation near a park on Dudley Street in the Roxbury section of Boston. The defendant, who lived across the street from the park, waited near a light pole along the third base line of the park's baseball field until the victim returned to the park. The defendant then retrieved a long rifle with a scope that he had hidden in some nearby bushes. Carlos Carrasquillo, the victim's cousin, was playing baseball when he saw the defendant aim the gun at his cousin. Carrasquillo yelled, “[R]un. He is going to shoot you.” The defendant, kneeling on the ground, aimed and shot the victim in the head.

[464 Mass. 858]The defendant ran from the park with the rifle in his hand. A group of bystanders carried the victim to an automobile and drove him to Boston City Hospital. He died eleven days later, on August 16, 1974. On the day of the shooting, police recovered a rifle with a scope from bushes in the rear yard of a house near the park. Witnesses to the shooting, who testified that they were familiar with the defendant, known at the time as “Honduras,” thereafter never saw the defendant in the park. In 1994, the defendant told a fellow inmate in an Indiana prison that he had shot and killed the victim.

1. Pretrial motions. The defendant claims error in the denial of his numerous pretrial motions, including motions to dismiss due to speedy trial violations, impairment of the grand jury, and loss of evidence; a motion to suppress statements based on alleged Miranda violations; and a motion for funds for an expert on identification. We examine each in turn.

a. Speedy trial. In 2002, claiming that the twenty-three-year delay between the issuance of the murder complaint in 1974 and his indictment in 1997 violated his constitutional right to a speedy trial, the defendant moved to dismiss the murder indictment. Following a hearing based solely on documentary evidence, a Superior Court judge (first judge) denied the motion on the ground that “the reason for the delay is attributable to [the] defendant's being a fugitive from justice.” In so doing, the judge made extensive findings of fact, which we adopt as being well founded, after taking “ ‘an independent view’ of the evidence and analyz[ing] its significance without deference.” See Commonwealth v. Clarke, 461 Mass. 336, 341, 960 N.E.2d 306 (2012), citing Commonwealth v. Bean, 435 Mass. 708, 714 n. 15, 761 N.E.2d 501 (2002).

i. Facts found at hearing on motion to dismiss. On August 17, 1974, a complaint for murder issued against the defendant in the Roxbury District Court. In September, 1974, the defendant, using the alias “Michael Sloane,” was arrested in East Chicago, Indiana, and charged with robbery. He told East Chicago police that his name was Ivan Santa. On October 22, 1974, East Chicago police notified Boston police that a drifter had informed them that the defendant was wanted in Massachusetts for a murder in Roxbury.

After confirming that the man detained in Indiana was the [464 Mass. 859]defendant, a Boston police detective mailed copies of three warrants for the defendant's arrest ¹ to East Chicago police. On the request of East Chicago police for certified copies of the

[986 N.E.2d 388]

warrants, Boston police sent an exemplified copy of the murder warrant to act as a detainer. As of October 29, 1974, Boston authorities planned to obtain an indictment for murder and then to obtain a governor's warrant for the rendition of the defendant. The assistant district attorney later decided, however, not to indict the defendant until the East Chicago charge was resolved. On March 14, 1975, the defendant was tried and acquitted of the charge of robbery in East Chicago. He was then released by East Chicago authorities without prior notice to Boston authorities.

Between 1975 and 1994, the defendant was charged in Illinois and Indiana with four different drug crimes under four different names. There is no evidence that the Commonwealth knew of the defendant's location or undertook any efforts to locate him during this period. In 1994, Boston police learned that the defendant was again in the custody of the Indiana department of correction. Two Boston police detectives traveled to an Indiana prison and interviewed the defendant concerning the 1974 shooting. The defendant maintained that he was not the man they sought, told police his name was Ivan Santa, and claimed that he had never been to Boston. On February 12, 1996, Boston police informed authorities in the Indiana department of correction that the defendant was still wanted for murder in Massachusetts, and provided them with the murder warrant to serve as a detainer. The next day, the defendant signed a form acknowledging that Indiana authorities had informed him of the detainer. On March 31, 1997, he waived extradition. Boston police brought the defendant back to Massachusetts on April 29, 1997, and he was indicted for murder on May 23, 1997.

ii. Discussion. On appeal, the defendant asserts that the first judge erred in denying his motion to dismiss because the Commonwealth[464 Mass. 860]failed to take him into custody despite knowing he was incarcerated in Indiana in 1974, and failed to do so again in 1994, and the delay prejudiced his defense.² The defendant having preserved his constitutional claim, we review to determine whether any error was harmless beyond a reasonable doubt. See Commonwealth v. Bacigalupo, 455 Mass. 485, 495, 918 N.E.2d 51 (2009), citing Commonwealth v. Vinnie, 428 Mass. 161, 163, 698 N.E.2d 896 (1998).

Under the Sixth Amendment to the United States Constitution and art. 11 of the Massachusetts Declaration of Rights,

[986 N.E.2d 389]

criminal defendants enjoy the right to a speedy trial. See Commonwealth v. Dixon, 458 Mass. 446, 459, 938 N.E.2d 878 (2010), citing Commonwealth v. Gove, 366 Mass. 351, 356 n.6, 320 N.E.2d 900 (1974), overruled on other grounds by Commonwealth v. Butler, 464 Mass. 706, 985 N.E.2d 377 (2013) (“the speedy trial provision in art. 11 is coextensive with the Sixth Amendment”). The burden is on the defendant “to demonstrate prejudicial delay sufficient to warrant dismissal.” Commonwealth v. Gove, supra at 361, 320 N.E.2d 900, citing Commonwealth v. Jones, 360 Mass. 498, 502, 275 N.E.2d 143 (1971), overruled on other grounds by Commonwealth v. Butler, supra.

We consider speedy trial claims using the nonexhaustive, four-part balancing test set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530–532, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)( Barker ). See Commonwealth v. Look, 379 Mass. 893, 897–898, 402 N.E.2d 470, cert. denied, 449 U.S. 827, 101 S.Ct. 91, 66 L.Ed.2d 31 (1980), overruled on other grounds [464 Mass. 861]by Commonwealth v. Butler, supra. Under this framework, a reviewing court weighs (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right to a speedy trial; and (4) prejudice to the defendant. Barker, supra at 530, 92 S.Ct. 2182 A defendant must first make a preliminary showing that he has suffered a delay that “has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay” before a court will consider the other factors. Doggett v. United States, 505 U.S. 647, 651–652, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)( Doggett ), quoting Barker, supra at 530–531, 92 S.Ct. 2182 Here, the defendant's speedy trial rights attached in 1974, upon the issuance of the complaint for murder by the Roxbury District Court, see Commonwealth v. Butler, supra at 708, 985 N.E.2d 377, resulting in a delay of over thirty years before trial. Such a delay is presumptively prejudicial and sufficient to trigger consideration of the other Barker factors.

A. Length of delay. The length of delay is considered both as an initial threshold for triggering a speedy trial analysis and as a factor of the analysis itself. Here, the...