Commonwealth v. Colon
Citation | 482 Mass. 162,121 N.E.3d 1157 |
Decision Date | 03 May 2019 |
Docket Number | SJC-12362 |
Parties | COMMONWEALTH v. Jose COLON. |
Court | United States State Supreme Judicial Court of Massachusetts |
Elaine Pourinski for the defendant.
Ellyn H. Lazar, Assistant District Attorney, for the Commonwealth.
Present (Sitting at Worcester): Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
In the summer of 2005, the victim was beaten and stabbed to death near a set of railroad tracks in Dudley. In 2013, the defendant was convicted by a Superior Court jury of murder in the first degree for his role in the killing. In this direct appeal, the defendant maintains that a new trial is required because the judge did not declare a mistrial after members of the jury were exposed to an extraneous influence, and that the judge committed reversible error by partially excluding the defendant from the subsequent voir dire of the deliberating jury. In addition, the defendant argues that the judge should have allowed his request for individual voir dire on questions of ethnic bias, and abused his discretion in certain evidentiary rulings. The defendant also asks us to exercise our extraordinary power under G. L. c. 278, § 33E, to order a new trial or to reduce the degree of guilt.
We affirm the conviction and decline to exercise our extraordinary powers to grant relief under G. L. c. 278, § 33E.
1. Facts. We summarize the facts that the jury could have found, reserving additional details for discussion of specific issues. See Commonwealth v. Clemente, 452 Mass. 295, 299, 893 N.E.2d 19 (2008).
Late on the evening of July 22, 2005, the victim and Jayser Cruz were socializing at the victim's family home; the victim and Cruz were family friends. At some point during the evening, the victim's sister heard Cruz express an interest in a knife that was lying on a table. The victim and Cruz then left the house together. According to the victim's sister, Cruz took the knife when they left.
Later that evening, the defendant was with Cruz and the victim at a convenience store. They ran into two women, the defendant's cousin, Maria Colon,1 and one of her friends. Cruz and the victim were drunk. The victim suggested that they all smoke marijuana, and the group walked to the nearby railroad tracks to do so. Maria heard Cruz tell the defendant that Cruz recently had bought a new knife.
After approximately fifteen minutes, Maria and her friend left to go home. As they were walking away, Maria heard what sounded like "skin ripping." When she looked back, she saw the defendant throwing rocks at the victim; she described the rocks as thin and estimated them to be approximately one inch in width. Her friend saw the defendant throw four to six rocks, which hit the victim in the back. The victim fell to the ground, where he kept asking the defendant to "stop." Cruz was laughing. When the defendant requested a knife, Cruz handed him a backpack. Maria asked the defendant to stop; he told her to leave, or "it would happen to [her] as well." At that point, Maria and her friend left the area. When they last saw him, the victim was on the ground in a fetal position.
The next morning, when the defendant came to Maria's house, she saw "little dots" and "splatter-marks" on his left leg. That afternoon, she saw the defendant at a laundromat. When the defendant left the laundromat, the "little dots" on his pants were stained yellow, as though he had tried to wash them.
That evening, the defendant's girlfriend and her friend picked up the defendant and they all drove around. The defendant told his girlfriend that he had killed the victim, and he pointed toward something in the distance that "looked like feet." He said that he had killed the victim "for us," and he warned her not to tell anyone or he would harm her siblings.
Later that evening, the defendant telephoned Maria and told her that he had killed the victim. The defendant explained that he had left the railroad tracks and was walking home, but then he returned to the railroad tracks, where he saw the victim getting up. The defendant picked up a large rock and hit the victim in the head with it several times.
The same day, the victim's body was discovered near the railroad tracks. When a chemist from the State police crime laboratory arrived at the scene, he saw the victim lying on his back; his heavily-bruised face and clothing were covered with "red-brown staining." A large rock, weighing roughly fourteen pounds, with red-brown stains, was next to the victim. The stain later was determined to be the victim's blood. The medical examiner concluded that the cause of death was a combination of blunt force trauma to the head
and two stab wounds to the body. Deoxyribonucleic acid (DNA) testing indicated that the blood found on a pair of jeans recovered from the defendant's house was the victim's.
2. Prior proceedings. In November, 2005, a grand jury returned indictments, charging the defendant, among other things, with murder in the first degree. Thereafter, the defendant moved to suppress his statements to police and the items seized during the two searches of his house. Following an evidentiary hearing, a Superior Court judge, who was not the trial judge, allowed the motions to suppress in part and denied them in part. The judge found that the defendant's statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because the Spanish interpretation of the Miranda warnings provided to the defendant were inadequate to apprise him of his rights. The judge denied the motion to suppress the evidence seized from the victim's house, after the judge determined that the defendant's consent to the first search had been validly obtained, and that police had had probable cause to obtain a warrant for the second search.
In March, 2013, the defendant was tried before a Superior Court jury. The jury convicted him of murder in the first degree on theories of deliberate premeditation and extreme cruelty or atrocity. The defendant timely appealed.
3. Discussion. The defendant maintains that a new trial is required because the judge did not declare a mistrial when several deliberating jurors expressed concerns about their safety, and that the judge erred by partially excluding the defendant from the subsequent voir dire of the deliberating jury. The defendant argues also that he was denied a fair trial because the judge did not conduct individual voir dire of the members of the venire with respect to questions of ethnic bias that defense counsel had requested be posed. The defendant further asserts error in the denial of his motion to suppress physical evidence, as well as in the admission of out-of-court statements, and he contends that his attorney was ineffective in failing to make certain arguments at the hearing on the motion to suppress. In addition, the defendant asks us to exercise our extraordinary power under G. L. c. 278, § 33E, to order a new trial or to reduce the degree of guilt.
a. Dismissal of jurors during deliberations. The defendant argues that he was denied the right to a fair and impartial jury when, after substantial evidence of bias was brought to the judge's attention during deliberations, the judge did not excuse the entire jury. Specifically, while the jury were deliberating, the juror in seat number 15 (juror no. 15) notified a court officer that she was afraid of the repercussions of the potential verdict in the case. She feared that if the jury were to find the defendant guilty, there could be possible retribution by gangs; if they were to find him not guilty, someone else would be stabbed. Juror no. 15 was fearful, in part, because the defendant had heard her name. The other jurors "were all there" during juror no. 15's conversation with the court officer; juror no. 15 reported that other jurors also previously expressed similar fears. The judge found that juror no. 15 could not remain impartial and excused her.
Because juror no. 15 reported that others had expressed similar "gang-related" fears, the judge conducted an individual voir dire of each of the remaining members of the jury.2 The juror in seat number 1 (juror no. 1) also was excused, after stating that he had been "watching to see if anyone is following me when I leave here." The foreperson, who was in seat number 3 (juror no. 3), reported that she had heard other jurors express fears about the proximity of the crime to "the location [in which] they lived" and "gang relation." Juror no. 3 also said she had been "concerned," the day before deliberations began, that people the defendant might know would "go after us." On the first day of deliberations, however, juror no. 3 reported that she was no longer concerned. The judge found that juror no. 3 "indicated very clearly that she didn't have any concerns now." Over the defendant's objection, juror no. 3 was not excused. The judge told juror no. 3 not to discuss the substance of the voir dire with anyone else.
Juror nos. 1 and 15 were replaced with alternates, and the jury were instructed to begin deliberations anew. The defendant objected that the jury were not struck entirely; he argued that the "fear running through the deliberations" prevented the jury from remaining impartial. The motion was denied. Approximately one hour later, the jurors returned a verdict finding the defendant guilty.
On appeal, the defendant contends that the extraneous influences on the jury resulted in actual bias when the suggestion of gang activity was introduced during the process of deliberation, where no evidence of gang activity had been presented at trial. The defendant argues that, as a result, he was denied the right to a fair and impartial jury when the judge declined to dismiss the entire jury.
i. Extraneous influence. "Article 12 of the Massachusetts Declaration of Rights and the Sixth Amendment to the United States Constitution guarantee a criminal defendant the right to a trial...
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