Commonwealth v. Martin, SJC–10836.

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation4 N.E.3d 1236,467 Mass. 291
Docket NumberSJC–10836.
PartiesCOMMONWEALTH v. Cleveland MARTIN.
Decision Date26 February 2014

467 Mass. 291
4 N.E.3d 1236

Cleveland MARTIN.


Supreme Judicial Court of Massachusetts,

Argued Oct. 11, 2013.
Decided Feb. 26, 2014.

[4 N.E.3d 1240]

Philip G. Cormier, Boston, for the defendant.

Cailin M. Campbell, Assistant District Attorney (Patrick Haggan, Assistant District Attorney, with her) for the Commonwealth.



In December, 2008, a Superior Court jury convicted the defendant of murder in the first degree on the theory of felony-murder, with armed robbery as the predicate felony. The defendant's convictions stem from the stabbing death of Heureur Previlon, a Brookline taxicab driver, whose body was found inside his vehicle in the early morning hours of August 25, 2005. The defendant and a codefendant, Jashawn Robinson, were indicted as joint venturers. Following the allowance of their motions to

[4 N.E.3d 1241]

sever, they were tried separately and Robinson was acquitted.1

The matter is before us on the defendant's direct appeal, which was consolidated with his appeal from the denial of his motion for a new trial. The defendant claims that (1) it was error to have denied his pretrial motions to suppress statements made to police on three occasions as well as certain physical evidence gathered as a result of those statements; (2) the judge improperly precluded him from cross-examining Laura Pizarro, the defendant's former girl friend and a key Commonwealth witness, as to certain false statements she had made accusing a relative of sexual impropriety, which the defendant contends were relevant to show Pizarro's motive to lie; (3) the evidence was insufficient to support a conviction of felony-murder insofar as the Commonwealth could not establish the element of armed robbery that something of value had been taken; and (4) the judge erred in denying his motion for a new trial on the ground of ineffective assistance of counsel based on counsel's failure to investigate properly and to object to the admission of evidence crucial to establish the armed robbery. We affirm the defendant's conviction of murder in the first degree and the denial of his motion for a new trial. After a careful review of the record, we decline to exercise our authority under G.L. c. 278, § 33E, to order a new trial or to reduce the conviction to a lesser degree of guilt.

1. Introduction. Shortly after 1 a.m. on August 25, 2005, the victim, who worked for Bay State Taxi Company (Bay State), was driving the defendant and Robinson to a parking lot near the Fidelis Way housing development in the Brighton section of Boston, where the defendant often stayed at the home of his girl friend, Pizarro. At some point while the two were in his taxicab, the victim was stabbed. The vehicle ultimately rolled to a stop in the nearby parking lot of a hospital, where it was first noticed some hours later by hospital security staff.

Immediately after the stabbing, the defendant and Robinson went to Pizarro's apartment. Each had blood on his clothes. The defendant showed Pizarro a knife with aluminum foil on its handle, saying that he had “killed somebody.” At the request of Robinson, Pizarro walked to the taxicab soon thereafter to retrieve items Robinson had left in it. When she arrived, she discovered the victim unresponsive and bleeding heavily. At approximately 5:45 a.m., the victim was found dead, lying in a fetal position on the front seat of the vehicle.

During the ensuing police investigation, bloody clothing was found in Pizarro's apartment that video surveillance footage linked to the defendant and Robinson. Deoxyribonucleic acid (DNA) testing identified the blood as the victim's. Early in the investigation, police spoke with Pizarro's aunt and the aunt's boy friend, who had telephoned police to report what they had seen at the apartment. Police also spoke with Pizarro and her cousin, William Brown. In addition to video surveillance footage from two sources, police obtained the defendant's cellular telephone records, which showed calls placed to Bay State after midnight on August 25, 2005.

In early September, 2005, warrants issued for the arrest of the defendant and Robinson on charges of murder and armed robbery. Shortly thereafter, they fled to Virginia using false names. Within weeks, they were arrested. After questioning by Boston detectives in a Virginia jail, the

[4 N.E.3d 1242]

defendant was returned to Massachusetts. While in a holding cell in the Brighton District Court, awaiting arraignment, he made statements to Robinson about the night of the stabbing which were overheard by police.

On December 21, 2005, a Suffolk County grand jury indicted the defendant for murder in the first degree, G.L. c. 265, § 1, and armed robbery, G.L. c. 265, § 17. His several motions to suppress were denied. After a thirteen-day trial, the case went to the jury on all three theories of murder in the first degree. The jury found the defendant guilty of robbery and felony-murder predicated on armed robbery; the robbery conviction was placed on file. The defendant timely appealed.

2. Trial. We recite the facts the jury could have found, reserving some details for later discussion.

a. The Commonwealth's case-in-chief. i. The events of August 24–25, 2005. On the evening of August 24, 2005, the defendant and Robinson went to a convenience store in Cleveland Circle in Brighton; their images were captured by the store's video surveillance camera at approximately 12:33 a.m. A few minutes earlier, at approximately 12:20 a.m., the defendant had telephoned Pizarro's cousin, Brown, and told him to stay by his telephone.2

At approximately 12:35 a.m., the defendant telephoned Bay State and requested a taxicab. He called again at 12:42 a.m., then at 12:44 a.m., and once more at 12:58 a.m., that time to complain that no taxicab drivers would pick him up in front of Cleveland Circle.3 Two drivers were dispatched, but each refused to pick up the defendant and Robinson. At 1:12 a.m., Robinson called Bay State using the name “Jonathan” and requested that a taxicab pick him up at the Reservoir subway station in Brighton.4 Previlon was dispatched to that location, and was not heard from again.

During the taxicab ride to the hospital parking lot adjoining the Fidelis Way housing development, the defendant sat in the rear seat behind the front passenger seat and Robinson sat in the rear seat behind the driver. 5 Robinson grabbed Previlon from behind, pulled him into the rear of the vehicle, and held him as the defendant stabbed him in the right side of the chest. The defendant then jumped out of the rear passenger window, which had been smashed by Previlon's flailing feet.

The defendant and Robinson walked together to Pizarro's apartment on Jette Court. At approximately 1:30 a.m., the defendant, sounding “really hyper excited,” telephoned Brown and asked to be admitted to the apartment building, a call overheard by Pizarro's aunt. Pizarro noticed that the defendant had blood on his shirt, and that Robinson had blood on his pants and a cut on his arm.6

[4 N.E.3d 1243]

Robinson asked Pizarro to retrieve his sneaker, hat, and cellular telephone clip from the taxicab. Pizarro walked to the parking lot and saw the vehicle, which had come to rest against a light pole, with its lights and radio on. Through the broken rear passenger side window, she called out to the victim, who was in the front seat. When he did not respond, Pizarro opened the rear passenger door, retrieved Robinson's items, and returned to the apartment; 7 blood from the hat stained her sneakers and the front walk. Pizarro put the sneakers Robinson and the defendant had been wearing in a bucket with water and bleach, then placed their clothes in a backpack. 8 She mopped to remove blood from the floor of her bedroom and near the front door of the apartment. The defendant and Robinson spent some time in Pizarro's room and left after they changed their clothes.

ii. The police investigation and the defendant's flight to Virginia. At approximately 6:30 a.m. on August 25, 2005, hospital personnel found the victim's taxicab resting against the light pole with its right rear passenger window smashed. The victim was in the fetal position in the front seat, dead of a knife wound to the right chest. Police found a knife with aluminum foil covering the handle in a wooded area behind the hospital's parking lot, in the direction of Jette Court,9 and observed shattered glass and blood stains leading in that direction.

After investigators learned from Pizarro's aunt and her boy friend about the cut on Robinson's arm and the bloodstains leading up to the apartment, three officers went to Jette Court to look for Pizarro and Brown in order to speak with them about the events of the previous evening. During their search, officers encountered a man who identified himself as the defendant. Ultimately, the officers arrested the defendant on an unrelated trespassing offense and seized his cellular telephone. The defendant was booked for the trespass offense and released on bail.

Approximately one week later, after the arrest warrants for the defendant and Robinson issued, Robinson, the defendant, and Robinson's girl friend, Stephanie Rodriguez–Ruiz, took a bus to Virginia. Only Rodriguez–Ruiz brought luggage, and the men used false names. Robinson and the defendant were arrested for murder and armed robbery on September 28, 2005, in Suffolk, Virginia. The defendant gave police a false name upon arrest and, when later interviewed, denied knowing anyone named “Jashawn” or “Hova,” 10 denied that he had a girl friend named Laura Pizarro, and stated that he had come to Virginia alone.

iii. The taxicab drivers' testimony. To prove that an armed robbery or an attempted armed robbery had taken place, the Commonwealth introduced extensive testimony from the victim's fellow taxicab drivers to the effect that the victim usually had certain items...

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