Commonwealth v. Maldonado

• Decision Date: 08 January 2014
• Docket Number: SJC–10769.
• Parties: COMMONWEALTH v. Carlos MALDONADO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

466 Mass. 742

2 N.E.3d 145

COMMONWEALTH

v.Carlos MALDONADO.

SJC–10769.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Sept. 10, 2013.

Decided Jan. 8, 2014.

Chauncey B. Wood, Boston, for the defendant.

Teresa K. Anderson, Assistant District Attorney (David S. Fredette, Assistant District Attorney, with her) for the Commonwealth.

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

GANTS, J.

A Superior Court jury convicted the defendant of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty, in violation of G.L. c. 265, § 1, for the killing of Mark Parilla.¹ The defendant raises four issues on appeal. First, he argues that his right to a public trial under the Sixth Amendment to the United States Constitution was violated by what he characterizes as a closure of the court room arising from the judge's order to require all spectators attending the trial to sign in and show identification. Second, he contends that the judge erred by admitting in evidence the grand jury testimony of a prosecution witness without complying with the requirements set forth in Commonwealth v. Daye, 393 Mass. 55, 469 N.E.2d 483 (1984). Third, he claims that the admission in evidence of prejudicial and inadmissible hearsay that one prosecution witness told another prosecution witness that he had seen the defendant shoot the victim created a substantial likelihood of a miscarriage of justice. Fourth, he argues that the judge violated his Sixth Amendment right to be tried by an impartial jury by failing to conduct a voir dire of all the jurors after one juror expressed concern that the defendant had access to the juror's address in the juror's confidential questionnaire. For the reasons detailed below, we affirm the defendant's convictions and the denial of his motion for a new trial.² After a complete review of the record, we decline to exercise our plenary authority under G.L. c. 278, § 33E, to order a new trial or reduce the murder conviction to a lesser degree of guilt.

Background. Because the defendant does not challenge the sufficiency of the evidence at trial, we briefly summarize it, reserving certain details of the trial for our discussion of the alleged errors.

The defendant, also known as “Braveheart,” was a member of the Charlestown “Bloods” gang and often stayed in an apartment on Walford Way with his step-grandmother in the Bunker Hill housing development in the Charlestown section of Boston. The victim was from New York and was a member of the Bloods in New York, but was not a member of the Charlestown Bloods. He had moved to Boston a few months before his death and resided with Travon Hector, who was a member of the Charlestown Bloods.

At approximately 4:30 p.m. on December 26, 2006, Hector had a heated argument about the victim with Ersy Herrera, Jose Rivera, Joey Bosquet, and others (but not the defendant), where the victim was accused of being a “snitch.” Hector defended the victim and said he would come back with him and fight them. After the argument ended, those who had confronted Hector returned to the apartment building on Walford Way. A blue pickup truck that the defendant usually drove was parked in front.³ They saw the defendant outside and told him about the argument with Hector and the accusation that the victim was an informant. The defendant said that the victim was a “snitch” and that there was “drama” between him and the victim. The defendant went to his second-floor apartment, and returned with a firearm, which he displayed to the others, saying, “I got something for that snitch.”

Meanwhile, Hector had returned home to get the victim, and each armed with a knife, they walked to the apartment building, arriving shortly after the defendant had retrieved the firearm. Once they arrived, they were directed to the area known as the “cut” in the back of the building, where they confronted those with whom Hector had earlier argued. Hector said, “[Y]ou wanted me to bring him so y'all can fight, so I brought him.” After Herrera asked the victim if he was an informant, a melee broke out, with the victim and Hector fighting the others. The defendant did not participate in the fight, but watched from the back steps of the apartment building. The fight ended when someone said they would call the police.

As the brawlers disengaged, the victim smiled and laughed, and Hector and the defendant exchanged insults. The defendant brandished his firearm and pointed it at Hector and the victim, and Hector taunted the defendant to shoot him. The victim began backing away from the defendant, who went down the stairs and fired the gun in the direction of the victim and Hector. The victim and Hector turned and fled through the “cut,” going in different directions. The defendant chased the victim. Multiple witnesses, including neighbors and participants in the fight, reported hearing three to five gunshots. One witness heard two shots in quick succession, then running feet, a third shot, and finally a scream, before seeing an individual who matched the defendant's physical description fire a final shot at the victim from a distance of between twelve to eighteen inches, causing the victim to fall to the ground on the sidewalk.

Immediately after the last shot was fired, Bosquet saw the defendant return to his truck parked in front of the apartment building and drive off, taking a left on Monument Street. Neighbors heard the sound of screeching tires and a vehicle speeding off, and observed a dark blue pickup truck “flying” out from Walford Way onto Monument Street.

The responding police officers found the victim lying on the sidewalk with a gunshot wound to the left side of his head, and no signs of life. The victim was pronounced dead at a hospital later that night. The medical examiner concluded that the victim sustained three gunshot wounds—to the head, torso, and right arm—and that the cause of death was gunshot wounds to the head and torso.

Discussion. 1. Sixth Amendment right to public trial. On the first day of trial, the prosecutor moved that the judge institute a procedure whereby any member of the public who wished to attend the trial would first sign in and show a photographic identification card to the court officer posted outside the court room. The prosecutor argued that this procedure was justified by “intimations in this case about intimidation of witnesses,” and told the judge that this procedure had been used in several cases where “there's any sort of gang affiliation involved.” The defendant objected, claiming that the proposed procedure would violate his right to a public trial. The judge postponed ruling on the motion until the court began to hear evidence.

On the second day of trial, during the testimony of Bosquet, the witness asked the judge if he could ask him a question and the judge said, “No,” and went to sidebar to confer with the attorneys. Bosquet then told the court reporter that the judge is “lucky we're not out on the streets.” When the judge learned of this statement, he characterized it as “a major” and “direct threat to the Court.”

On the third day of trial, the prosecutor renewed his request that all members of the public who enter the court room sign in and show identification. ⁴ The prosecutor spoke of the “gang overtones throughout this case” and the apparent threat made by Bosquet, and noted that, a few days earlier, a person with outstanding arrest warrants had “inquired of the mother and the sister” of a prosecution witness in the hallway of the court house. The prosecutor also argued that the identification procedure was justified to ensure compliance with witness sequestration, because there were persons on the witness list who did not know they were on the list, who had not been subpoenaed to testify, and whom the prosecutor did not know. The defendant again objected to the proposed measures and suggested, as alternatives, that the court officer post a witness list outside the court room, or that the prosecutor contact each witness to inform them of his or her status as a prospective witness. After considering these arguments, and balancing the interests of safety and witness sequestration against the defendant's right to a public trial, the judge ordered that, before entering the court room, each spectator must sign in and “give a source of identification” to the court officer posted outside the court room.⁵ The judge directed the court officersto bar from the court room all persons on the witness list, but stated, “If they are not on that list, by all means, they may come in here.” The judge did not provide any guidance as to what the court officers should do if a spectator signed in but did not have a source of identification. But he made clear his intention, stating, “[I]n the system that I have set up here, ... all the people who wish to attend this trial may attend this trial, except for the people who are listed as potential witnesses.”

The defendant contends that the judge's order constituted a closure of the court room that violated his right to a public trial guaranteed by the Sixth Amendment.⁶ See Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). We have recognized that “an open court room ‘enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system,’ ” because “[t]he ‘sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known’ ” (emphasis in original). Commonwealth v. Cohen, 456 Mass. 94, 107, 921 N.E.2d 906 (2010), quoting Press–Enterprise Co. v. Superior Court, 464 U.S. 501, 508, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984).

A full closure of a court room in a criminal trial constitutes a violation of a defendant's Sixth Amendment right to a public trial unless the closure advances an “overriding interest”...