Commonwealth v. Cintron

• Decision Date: 14 September 2001
• Citation: 435 Mass. 509,759 NE 2d 700
• Parties: COMMONWEALTH v. MARIO JAVIER CINTRON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

435 Mass. 509

759 NE 2d 700

COMMONWEALTH v. MARIO JAVIER CINTRON.

Supreme Judicial Court of Massachusetts, Hampden.

September 14, 2001.

December 21, 2001.

Present: MARSHALL, C.J., GREANEY, IRELAND, SOSMAN, & CORDY, JJ.

Patricia A. O'Neill, Committee for Public Counsel Services, for the defendant.

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

IRELAND, J.

The defendant was convicted of the murder in the first degree of Harlen Hardrick and the assault by means of a dangerous weapon, namely a rifle, of Lincoln Hardrick. He claims the judge erred in (1) denying his motions for required findings of not guilty; (2) denying his motion for a new trial resulting from newly available evidence; (3) admitting videotape evidence of the defendant's brother beating the murder victim with a baseball bat several months prior to the shooting; and (4) allowing the improper impeachment of defense witnesses with insinuated association with gangs and allegations of recent contrivance. The defendant also requests that we exercise our plenary power under G. L. c. 278, § 33E, either to order a new trial or to reduce his murder conviction to a lesser degree of guilt. For the reasons set forth below, we affirm the convictions, affirm the denial of the motion for a new trial, and decline to exercise our power under G. L. c. 278, § 33E.

I. Facts.

We summarize the evidence in the light most favorable to the Commonwealth. Commonwealth v. Gilbert, 423 Mass. 863, 864 (1996). On July 22, 1996, a large crowd drew police to the 7-Eleven convenience store on Pleasant Street in Holyoke. On their arrival, police found an Hispanic man hitting another man with a bat. Officers immediately ordered the attacker to drop the weapon and he proceeded to strike the man once more before complying. Officers then placed the attacker under arrest, and he was later determined to be Mario Jesus Cintron (Mario).¹ The victim was Harlen Hardrick.

The defendant was not present at the scene during the fight. During the investigation of the murder leading to the defendant's conviction, he told police that he was aware that Mario had been arrested in connection with the fight at the 7-Eleven. He also stated that he was aware that Mario had a trial date approaching in which Harlen Hardrick would testify as the victim of the beating.

On January 20, 1997, Lincoln Hardrick, Harlen Hardrick's brother, was walking on Pleasant Street with Nelson Pacheco. They encountered Harlen near the parking lot adjacent to Mel's Restaurant. At that time, one of Lincoln's friends, described only as a white male with blond "spikey" hair, pulled up in a gray minivan. Harlen and Lincoln sent Nelson to go and purchase some marijuana, while they talked with the driver.

Nelson crossed Pleasant Street, went behind his apartment building at 489 Pleasant Street, and yelled to his brother, Victor Rios, that he wanted to buy some marijuana for Harlen. Victor was standing on a fourth-floor back porch with Jose Feliciano and the defendant. Victor then joined Nelson and went around to the front of the apartment building to the minivan in the parking lot adjacent to the restaurant where Harlen and Lincoln were standing. When Victor left, the defendant was still standing on the porch.

Victor told Lincoln and Harlen that they should leave the area. Moments later, Harlen noticed Mario and the defendant running across Pleasant Street in their direction, and yelled "look up" to Lincoln. Mario was carrying a rifle and the defendant was shouting things at the Hardricks in Spanish. Harlen and Lincoln turned and ran.

Mario fired a shot in the direction of Harlen and Lincoln, then paused. The defendant shouted, "Today's the last day to live," at the Hardricks, and shouted in English and Spanish to shoot and kill "that cabron."² Mario then fired five more shots at Harlen and Lincoln; one of which struck and penetrated the left side of Harlen's back, passing through his chest.

As Harlen and Lincoln ran, Harlen yelled to Lincoln that he had been hit; Harlen then collapsed. Lincoln carried him to a friend's house where he applied pressure to his wound while the friend called for an ambulance. When police arrived, they put Lincoln in a cruiser and took him to the police station for questioning. Harlen died as a result of the gunshot wound.

After the shooting, Mario and the defendant fled behind the apartment block at 489 Pleasant Street, and Mario exclaimed in Spanish, "so they won't be such cabrones." The defendant emerged a few minutes later and was stopped by Officer Jennifer Sattler in front of the apartment building. Jorge Rivera recorded these and other events occurring after the shooting on videotape from his apartment window at 483 Pleasant Street, and he later gave it to the police. The defendant was wearing the same clothing he wore during the shooting; a white, yellow, and blue jacket and a white baseball cap. Officer Sattler detained him while she called dispatch to check the description of the perpetrators. While Officer Sattler detained the defendant, Mario came out of 489 Pleasant Street and passed his brother, without acknowledging him, on his way up the street. This too was recorded on Jorge Rivera's videotape. Because the dispatch officer had given an erroneous description of the perpetrators, Officer Sattler released the defendant.

Police returned to the apartment block of 489 Pleasant Street on several occasions during the investigation. Officers discovered two 7.62 caliber cartridges in a basement area beneath 489 Pleasant Street, where Mario lived. These cartridges were of the same caliber as those found in the parking area adjacent to the restaurant and had been "cycled" through the same weapon.

The day after the shooting, police brought the defendant to the Holyoke police department for questioning. The police offered him no inducement, he appeared sober and lucid, and police properly warned the defendant of his Miranda rights. He signed a Miranda card, acknowledging that he had been informed of his rights and that he understood them. He then proceeded to give a statement in response to questions posed to him by State Trooper Christopher Wilcox and Officer Edgar Lopez. The defendant stated that he was at his house most of the day, but left sometime in the evening to go to the 7-Eleven on Pleasant Street. He stated that he purchased a hot dog and a soda and consumed them in the store before walking home. As he was walking home he was stopped by a "woman cop" and asked what he had been wearing earlier. He said that he was wearing black pants, a green sweater, and a yellow jacket. When asked if he remembered seeing his brother on the day of the incident, he stated that he had seen him in the afternoon before he went to the 7-Eleven, but not after. Officer Lopez watched the videotape from the 7-Eleven security camera between the hours of 7 P.M. and 8 P.M. on the date of the shooting and testified that the defendant did not appear. Jorge Rivera's videotape of the defendant shows that, after the shooting, he was wearing a yellow, white, and blue jacket and a white baseball cap.

Witnesses identified the defendant from photographs as the person standing beside the shooter and yelling to him to shoot and kill the victim. State Troopers Wilcox and John G. Murphy approached Lincoln Hardrick with photographic arrays at about 1:15 A.M. on January 21, 1997, and he immediately identified the defendant's brother as the shooter. They then showed him an array mistakenly believing that it included a photograph of the defendant. Lincoln did not make any identification from that array. Troopers Wilcox and Murphy approached Lincoln with another set of photographs containing a picture of the defendant at 3:20 P.M. that same day. Lincoln said that the array did not contain a photograph of the shooter and that he already had identified him for the police. He was heavily intoxicated at the time. Two days later, Trooper Wilcox showed Lincoln an array containing the defendant's photograph and he identified the defendant as the shooter's brother who was with him.

Trooper Wilcox also showed photographic arrays separately to Jorge Rivera and Carmen Rodriguez, Jorge's girl friend who lived with him and witnessed the same events on the day of the shooting. Jorge had a difficult time identifying the defendant from black and white photographs, but immediately identified him from color photographs. Carmen immediately identified the defendant as the brother of the shooter who was with him at the time of the shooting.

The Commonwealth produced evidence that the defendant attempted to intimidate and influence witnesses in his case. Jorge Rivera testified that the defendant and Jose Feliciano made threatening comments while he was in the apartment complex parking lot, attempting to repair dents in his automobile. He testified that he overheard the defendant say that the person who made the videotape, referring to Jorge, would "be next" if he gave it to the police.

The defendant also referred to both Victor Rios and Nelson Pacheco as "rats" in the presence of other inmates in a jail cafeteria line while being held on bail. The defendant said it loudly enough that other inmates could hear. Victor also testified that the defendant told him to tell the defendant's attorney that he had nothing to do with the shooting, that Lincoln had a gun and shot first, and that the defendant came out to try to calm his brother down. Victor also testified that the defendant told him that he "wanted to go to the street" so that he could kill Lincoln Hardrick. Victor testified that he was beaten by Netas gang members the defendant associated with for giving a statement to the police. The defendant also rushed up to him, looked at him angrily, and called him a rat when they accidentally met in a holding room outside of the visiting area of the jail.

Police arrested the defendant and Mario and they were...