Commonwealth v. Gonzalez

• Decision Date: 09 July 2013
• Docket Number: SJC–10940.
• Parties: COMMONWEALTH v. Luis GONZALEZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

465 Mass. 672

991 N.E.2d 1036

COMMONWEALTH

v.Luis GONZALEZ.¹

SJC–10940.

Supreme Judicial Court of Massachusetts,

Worcester.

Argued March 8, 2013.

Decided July 9, 2013.

Jeffrey L. Baler for the defendant.

Jane A. Sullivan, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., CORDY, GANTS, DUFFLY, & LENK, JJ.

IRELAND, C.J.

On March 9, 2010, a jury convicted the defendant, Luis Gonzalez, of murder in the first degree on the theory of deliberate premeditation. Represented by new counsel on appeal, the defendant argues error in (1) the denial of his motion to suppress statements, (2) the prosecutor's closing argument, and (3) the judge's instructions to the jury. The defendant also seeks relief pursuant to G.L. c. 278, § 33E. We affirm the order denying the defendant's motion to suppress as well as the defendant's conviction, and discern no basis to exercise our authority pursuant to G.L. c. 278, § 33E.

1. Motion to suppress statements. a. Background and standard of review. Prior to trial, the defendant moved to suppress statements he made to police after he was arrested, but before he received the Miranda warnings. As relevant here, the defendant argued that his statements were not preceded by a knowing, intelligent, and voluntary waiver of his Miranda rights in violation of the Fifth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. After conducting an evidentiary hearing, the motion judge ² denied the motion. The judge concluded that the defendant's statements were not the result of police interrogation, but rather were spontaneous and unprovoked and that, therefore, the lack of preceding Miranda warnings did not violate the defendant's constitutional rights. The judge also found, beyond a reasonable doubt, that the defendant's statements had been voluntary.

In reviewing a decision on a motion to suppress, “we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of [the judge's] ultimate findings and conclusions of law.’ ” Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002). We summarize the judge's findings of fact, supplemented with uncontested testimony adduced at the evidentiary hearing. See Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007), and cases cited.

Based on evidence identifying the defendant as the person who had stabbed the victim earlier that evening, Sergeant Mark Richardson of the Worcester police department, who was in charge of the investigation, went, near midnight on February 28, 2005, to join other officers at the defendant's last known address at an apartment in Worcester. Prior to Sergeant Richardson's arrival, other officers had observed a man fitting the defendant's description enter the apartment. The defendant was apprehended there and was arrested. He told officers, “You've got me.” He did not appear to have any physical injuries, and was not unsteady on his feet.

The defendant was transported to a police station and placed in a holding cell. At around 2:30 a.m., now March 1, Officer Danny D. Diaz was asked by Detectives Mark Sawyer and Eric Boss to bring the defendant to the detective bureau for an interview. Accompanied by the detectives, Officer Diaz, first in English and then in Spanish, identified himself and told the defendant that he was going to bring him upstairs.³ The detectives joined them. While approaching an elevator, Officer Diaz told the defendant, in Spanish, that the detectives wished to speak with him about an incident. The defendant stated that he wanted to talk to someone about it. Officer Diaz interrupted, telling the defendant that “right now's not the time to talk” and eventually there would be an opportunity to talk.

Inside the elevator, the defendant stated that he was “only defending himself.” Officer Diaz again advised the defendant that it was not the time to talk and relayed that they would talk after certain procedures had been completed. The defendant stated that he was “jumped” and that he only had been “defending himself.” At least three or four times, Officer Diaz told the defendant that it was not the time to talk. The defendant nevertheless continued, crying at times and telling Officer Diaz that he wanted to talk to someone about the incident, that he had not wanted to hurt anyone, and that he only had been defending himself. To Officer Diaz, the defendant appeared nervous and scared.

After the defendant was fingerprinted, Officer Diaz brought him to an interview room. There, Officer Diaz, using a preprinted card, advised the defendant of the Miranda warnings, both in English and in Spanish. The defendant signed the Miranda warning card, and then asked for a lawyer. All questioning ended.

b. Discussion. The defendant argues on appeal that Miranda warnings were required because Officer Diaz's remark, made when the detectives were by his side, that they wanted to talk to him, was the “functional equivalent” of express questioning. “Miranda warnings are only necessary where one is the subject of ‘custody and official interrogation.’ ” Commonwealth v. Larkin, 429 Mass. 426, 432, 708 N.E.2d 674 (1999), quoting Illinois v. Perkins, 496 U.S. 292, 297, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990). “For the purposes of Miranda, ‘interrogation’ means not only express questioning of a suspect but also its ‘functional equivalent.’ ” Commonwealth v. D'Entremont, 36 Mass.App.Ct. 474, 478, 632 N.E.2d 1239 (1994), quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The term “functional equivalent” includes “any words or actions on the part of the police (other than those normally attendantto arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, supra. “In this context, an ‘incriminating response’ includes any response, inculpatory or exculpatory, which the prosecution might seek to use against the suspect at trial.” Commonwealth v. Torres, 424 Mass. 792, 797, 678 N.E.2d 847 (1997). “The ‘functional equivalence’ test does not turn on the subjective intent of the particular police officer but on an objective assessment as to whether the police statements and conduct would be perceived as interrogationby a reasonable person in the same circumstances.” Id., quoting United States v. Taylor, 985 F.2d 3, 7 (1st Cir.), cert. denied, 508 U.S. 944, 113 S.Ct. 2426, 124 L.Ed.2d 647 (1993).

The judge correctly concluded that the defendant's statements were not the result of police interrogation or its functional equivalent. Officer Diaz informed the defendant that he was there to transport him to a different location and that the detectives (not Officer Diaz, himself) wished to speak to him about an incident. In response, when the defendant stated that he wanted to talk to someone, Officer Diaz interrupted him and told him clearly and unequivocally that now was not the time to talk. Neither Officer Diaz nor the detectives expressly asked any questions of the defendant. Any uncertainty (possibly resulting from the unnecessary presence of Detectives Boss and Sawyer during the transport of the defendant) ⁴ concerning when it would be appropriate for the defendant to talk was made clear by Officer Diaz—“right now's not the time to talk.” A reasonable person in the same circumstances as the defendant would not have perceived that he was then being subject to an interrogation or that the officers were trying to elicit incriminating responses from him. The defendant's statements thereafter were voluntary and not made as a result of any police prompting or coercion. Indeed, Officer Diaz repeatedly and expressly instructed the defendant that it was not the time to talk. While the standard to evaluate whether the functional equivalent of an interrogation had occurred focuses on the perceptions of a reasonable person in the same circumstances as the suspect, see Commonwealth v. Torres, supra, the defendant cannot parse out one police remark and ignore the rest of the record. There was no error.

2. Trial. As an initial matter, the defendant did not contest that he stabbed and killed the victim during an argument. The main issues at trial were whether the defendant acted with the requisite intent to commit murder, whether certain circumstances mitigated the murder to manslaughter, and whether the killing was excused because he had acted in proper self-defense.

a. The Commonwealth's case. We summarize the facts the jury could have found, reserving certain details for discussion in conjunction with the specific issues raised. On February 28, 2005, the victim lived with her two young children in a five-bedroom apartment in Worcester. Three other adults also lived in the apartment and paid rent to the victim: Taina Diaz, Adolfo Acevedo (Adolfo),^5,6 and the defendant.

At about 9 p.m., on February 28, 2005, Diaz returned home to find the defendant in the kitchen drinking a “forty,” which is a forty-ounce can of beer, and playing loud music. He turned up the volume when she asked him to lower it, so she took her radio away from him and knocked over his beer. The defendant went to the liquor store. When he returned, he and Diaz bickered about his refusal to remove his shoes while inside.

The victim arrived home at approximately 9:30 P.M. Diaz told the victim what had occurred between her and the defendant. The victim and the defendant started arguing in the kitchen. The victim's friend, Yasaira, who was Adolfo's sister and had been watching the victim's children, heard the victim and the defendant arguing. Both Diaz and Yasaira saw the defendant push the victim. Diaz told the defendant to “get off” the victim. Yasaira told the defendant to stop, but he “kept trying to put hands on [the victim].” Yasaira asked a...