Commonwealth v. Delacruz

• Citation: 463 Mass. 504,976 N.E.2d 788
• Decision Date: 11 October 2012
• Docket Number: SJC–10682.
• Parties: COMMONWEALTH v. Jose DELACRUZ.
• Court: United States State Supreme Judicial Court of Massachusetts

463 Mass. 504

976 N.E.2d 788

COMMONWEALTH

v.Jose DELACRUZ.

SJC–10682.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 10, 2012.

Decided Oct. 11, 2012.

Charles K. Stephenson, South Hadley, for the defendant.

Kris C. Foster, Assistant District Attorney (Amy J. Galatis, Assistant District Attorney, with her) for the Commonwealth.

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

IRELAND, C.J.

On May 19, 2009, a jury convicted the defendant, Jose Delacruz, of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty, and of possession of a firearm without a license, in violation of G.L. c. 269, § 10 ( a ). Represented by new counsel on appeal, the defendant argues (1) that he was deprived of his counsel of choice resulting in a violation of the Sixth Amendment to the United States Constitution; (2) error in the denial of his motions to suppress statements; and (3) error in the judge's instructions to the jury. In addition, the defendant asserts that we should exercise our power pursuant to G.L. c. 278, § 33E, to reduce the murder verdict to a lesser degree of guilt or to grant him a new trial. We reject the defendant's claims, affirm the order denying the defendant's motions to suppress, and affirm the judgments of conviction. We discern no basis to exercise our authority pursuant to G.L. c. 278, § 33E.

1. Background. The jury could have found the following facts. During the early morning hours of February 8, 2007, the defendant walked into a convenience store located in the Grove Hall neighborhood of the Roxbury section of Boston, stayed briefly, and left. A short time later, the defendant returned to the store, entered it, drew a firearm, and shot repeatedly at the victim, Tyrice Brown, who was sitting on an icebox inside the store.¹ The victim fell to the floor and said, “Help me.” An employee telephoned 911 and then attempted to comfort the victim. The victim was breathing heavily and holding his chest, his eyes were open, and he was shivering. A few minutes later, an ambulance and police arrived. Police removed a projectile protruding from the victim's stomach area. The victim was transported to a nearby hospital where he died within hours.

The victim suffered numerous injuries from four separate gunshot wounds. He died as a result of gunshot wounds to his torso with perforations to his lung, liver, intestines, and external iliac artery (a major blood vessel). The medical examiner who performed the autopsy gave his opinion that, although the victim would have died shortly after sustaining his injuries, he would have experienced “significant” pain and would have had difficulty breathing. The medical examiner recovered two spent projectiles and two bullet fragments during the autopsy.²

Witnesses at the convenience store could not identify the shooter, but surveillance cameras inside the store recorded the shooting in its entirety. Sergeant Detective Kevin J. Buckley of the Boston police department's homicide unit, who was in charge of the investigation, showed the recording to various individuals, including one patrol officer who immediately recognized the shooter as the defendant. The officer had known the defendant for approximately ten years, had grown up in a neighborhood near the defendant's, and knew the defendant and some of his family from attending the same church.

An arrest warrant was obtained, and the defendant eventually was apprehended and arrested in Wilmington, Delaware, on March 27, 2007. After being given Miranda warnings and waiving those rights, as well as his right to a prompt arraignment, the details of which are set forth later in this opinion relative to the defendant's motions to suppress, the defendant agreed to speak with detectives from Boston who arrived in the late evening on the day of the defendant's arrest. Once the defendant was shown a photograph from the surveillance video recording of the shooting, he admitted that he had shot the victim in retaliation for having his been shot in the hand by the victim in January, 2007.

The defendant did not testify at trial. His trial counsel elicited during the cross-examination of a detective that the defendant claimed that the person who allegedly had shot him in January had continued thereafter to taunt and threaten him. The defendant's trial counsel argued that, although the defendant had shot the victim, because the defendant is “cognitively limited,” the shooting was “something less” than murder in the first degree. Defense counsel repeated this point during his closing argument, asserting that the defendant's mental limitations warranted a verdict of murder in the second degree. In support of this defense, at trial, the defendant offered the testimony of Dr. Charles Drebing, a clinical neuropsychologist. Dr. Drebing testified that he had performed a neuropsychological assessment of the defendant, during which the defendant revealed that he had experienced a “lifelong history of troubles in school and [in] work.” The defendant also reported that he had been in special education classes while in school. Dr. Drebing testified that the results of various tests he had conducted confirmed that the defendant was in the “borderline mentally retarded” to low intelligence range. Dr. Drebing also noted that the defendant exhibited several symptoms of posttraumatic stress disorder, as well as depression. Dr. Drebing acknowledged during cross-examination that he had not been asked by defense counsel to render an opinion concerning whether the defendant was competent. Dr. Drebing did not provide any opinion concerning whether the defendant was legally responsible for his criminal conduct.

2. Deprivation of counsel of choice. The defendant argues that, by holding the parties to a November 18, 2008, order scheduling a trial date of May 12, 2009, both a pretrial judge and the trial judge committed “structural constitutional error” violating his right to counsel under the Sixth Amendment to the United States Constitution. Some background is in order.

The defendant was arraigned in May, 2007. Ten months later, on March 27, 2008, a joint motion of the parties was allowed to move the trial date to July 28, 2008. On July 17, 2008, the parties appeared in court and by agreement continued the trial date to July 30, 2008. Two days before this scheduled trial date, the defendant's request to continue the trial date to August 26, 2008, was allowed. This action was taken simultaneously with the defendant's change of appointed counsel. The record reflects that, on August 26, 2008, the trial date was rescheduled to May 1, 2009,³ and that the defendant waived his right to a speedy trial under Mass. R.Crim. P. 36(b)(1)(C), 378 Mass. 910 (1979). On November 10, 2008, the Commonwealth moved to continue the trial date to May 12, 2009. This motion was allowed on November 18, 2008. Thus, by November 18, 2008, the defendant's trial date had been moved five times and without objection by the defendant.

On March 3, 2009, counsel for the parties appeared before a pretrial judge. The defendant was not present. Counsel had informed the clerk that they wanted to discuss the issue of a change of defense counsel, but that the issue could be explored only if the trial date were to be moved. The private attorney who sought to be appointed as counsel for the defendant indicated that he could be available the second week of July. An assistant district attorney suggested a November trial date, which the judge rejected because he “need[ed] to put some cases into July.” The judge requested that the parties and the defendant soon return and stated that he would “tentatively” reschedule the trial date for July 13.⁴

On March 10, 2009, the parties appeared again before the same pretrial judge. The defendant was present. His appointed counsel was not present because of a family emergency, but had called and relayed that he stood ready for trial (for May 12). Potential private counsel for the defendant was present and stated that he was “prepared to enter an appearance” but with a “contingency,” namely, he could not do so if the case were to be tried in May. He indicated that he had been contacted but not retained by the defendant's family in August or September of 2008, and that they had “recontacted” him “a couple of weeks ago” to “secure representation.” Because of a trial the attorney had in late April, he stated that he could not represent the defendant unless the May 12 trial date was moved. The judge stated that he “appreciate[d]” the candor of the attorney and that the case “[was] going to go forward on May 12.” The judge then inquired of the attorney regarding another possible case conflict in May, which the attorney acknowledged could occur. Neither the Commonwealth nor the defendant asked to be heard. The judge thanked counsel, and the clerk announced that the case remained on trial for May 12.^5,6 The record does not indicate why the focus of this hearing reverted back to the May 12, 2009, trial date instead of the previous “tentative” July date.

a. Action of pretrial judge. The defendant states that the pretrial judge who, on March 10, 2009, kept the May 12, 2009, trial date in place prevented him from “exercising his right to be represented by counsel of his choice.” In essence, the defendant challenges the effective denial of a request for a continuance so that he could change counsel. “Whether a motion for continuance should be granted lies within the sound discretion of the judge, whose action will not be disturbed unless there is patent abuse of that discretion, which is to be determined in the circumstances of each case.” Commonwealth v. Pena, 462 Mass. 183, 189, 967 N.E.2d 603 (2012), quoting Commonwealth v. Bettencourt, 361 Mass. 515, 517–518, 281 N.E.2d 220 (1972). A judge, however, may not exercise his discretion in such a way as to impair a defendant's “constitutional right to...