Commonwealth v. Melo

Decision Date23 July 2015
Docket NumberSJC–11513.
Citation472 Mass. 278,34 N.E.3d 289
PartiesCOMMONWEALTH v. Nelson MELO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Jeanne M. Kempthorne, Salem, for the defendant.

Mary O'Neil, Assistant District Attorney, for the Commonwealth.

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

Opinion

HINES, J.

On November 3, 2009, Chad Fleming (victim) was killed during a robbery (or attempted robbery) of drugs that he had planned to sell to the defendant, Nelson Melo. The defendant and Aaron Morin were charged with murder in the first degree in the death of the victim. The Commonwealth contended that the defendant acted as a joint venturer with Morin, who was tried separately. In November, 2012, a jury convicted the defendant of murder in the first degree on the theory of felony-murder.1 , 2 Represented by new counsel on appeal, the defendant argues (1) error in the partial denial of his motion to suppress statements he made to police; (2) error in the denial of defense counsel's motion to withdraw from the case two days before trial; and (3) ineffective assistance of trial counsel. We conclude that the defendant's motion to suppress statements made after being taken involuntarily to the police station should have been allowed in its entirety because these statements were the inadmissible fruits of an unlawful arrest. Because the defendant did not seek suppression on this ground, however, we review to determine if the error created a substantial likelihood of a miscarriage of justice, and conclude that it did not. We reject as well the other claims of error and, therefore, affirm the order denying defense counsel's motion to withdraw and affirm the defendant's conviction.

Background. We recite the facts the jury could have found. The victim, who was twenty-five years of age, lived in Florida and regularly supplied the defendant with Percocet for the defendant's drug dealing business. On November 3, 2009, the victim flew to Providence, Rhode Island, rented an automobile, and drove to Massachusetts to meet with the defendant to supply him with Percocet. He telephoned his girl friend to let her know that he had safely landed. She never heard from him again.

The defendant and his wife3 were both involved in the sale of Percocet and both developed a dependency on the drug. The defendant supplied pills to his friend Morin, and also to Michael

Stenstream4 and Stenstream's friend Brandon George.5

About one week prior to the murder on November 3, the defendant's wife and George drove to Florida to purchase pills from the victim. The defendant's wife gave the victim $42,000 in cash. The victim telephoned the defendant because the amount was short of what he had expected. Nevertheless, the victim supplied the defendant's wife with about 4,000 Percocet pills that she brought home to the defendant.

Before this trip to Florida, Morin told the defendant that the victim was dealing to other people in Massachusetts. The defendant expressed disbelief, so Morin, in the defendant's presence, telephoned a man and put him on speakerphone. The man confirmed what Morin had stated.

On the morning of November 2, the day before the murder, Morin visited the defendant at the defendant's wife's home, where they were then living. The defendant's wife had been sleeping. She woke up and heard Morin whisper something about “hitting” someone and something about a black hat. She also overheard Morin say, “I'll take care of the other two” or They will take care of the other two.”

During the late afternoon of November 2, Morin met with his friend Michael Matteson. Matteson owed Morin money, and Morin offered him an opportunity to repay the debt. Morin told Matteson that he was going “to rob his connect's connect and make some money.” Morin's “connect,” or drug supplier, was the defendant. Morin explained that the defendant's “connect” would be arriving to sell Percocet and they were going to rob him; they included Morin, a person named Walter Babcock, and the defendant. Morin explained further that the defendant's “connect” would be at an apartment owned by the defendant,6 and Morin would receive a telephone call when he arrived. The “robbers” would go through the back door, Matteson would take the money and drugs, Babcock would grab the defendant's “connect,” and Morin would make it look like he was holding down the defendant. Matteson said he would think about it, but ultimately decided not to participate.

On November 3, the defendant and his wife expected the victim to visit them at their apartment. The defendant had his wife help package between $42,000 and $58,000 in cash. The defendant's wife heard him ask someone over the telephone whether he was “going to get it back.” Shortly after 8 p.m. , the defendant left the apartment wearing a black hat.7 He took the money with him. Approximately thirty minutes later, the defendant's wife was speaking with the defendant on the house telephone when the victim telephoned her on her cellular telephone. After communicating with her husband, the defendant's wife told the victim that the defendant wanted him to go to Stenstream's apartment. See note 6, supra.

At the Bay Street residence, the defendant's sister, Lucia Rodriguez, and her husband, Gabriel Rodriguez,8 were in the living room of the first-floor apartment. See note 6, supra. After Gabriel had settled in to watch a television program that commenced at 9 p.m. , the defendant came into the apartment and spoke with Lucia. The defendant told her that he was going upstairs to speak with the victim.

Soon thereafter Lucia heard the footsteps of multiple people heading upstairs. Gabriel heard more than one set of footsteps coming from above. The defendant came down from the second-floor apartment and went into the kitchen with Lucia. He told her to stay downstairs then “bolted” back upstairs. While the defendant was speaking to her, Lucia heard a “big rumbling.”

Gabriel then heard what sounded like multiple people running down the back stairs of the second-floor apartment. Looking outside a window, he saw an automobile leave his home quickly. Lucia heard people run out and saw a gray automobile departing with two people in the front and one person in the back. She heard the voice of another person that she did not recognize upstairs with her brother.

The defendant came downstairs, took some ice packs from the refrigerator, told Lucia he would be “right back,” and returned upstairs. After a few minutes the defendant asked Lucia to check

on the victim because he was not responding. From the kitchen, Gabriel heard something about a fight and heard the defendant say, “I think he got hurt.”

Upstairs, Lucia discovered the victim lying on his back on a bed in the spare bedroom. There were ice packs on his neck. She tried to see whether he was breathing. The victim was not moving, and she told the defendant to telephone 911. The defendant insisted that he wanted his wife.

At about 8:45 or 9 p.m. , Morin, out of breath, telephoned the defendant's wife, asking for the defendant. Morin asked her, “Do you know what happened?” He added, “Man, that kid was tough.” The defendant's wife told Morin that the defendant was not there. The defendant's wife asked, “What's going on?” and Morin replied, “I've got to call [Lucia].” The defendant's wife then telephoned Lucia, who stated that she did not know where the defendant was. Soon thereafter Lucia arrived and insisted that the defendant's wife and their daughter accompany Lucia back to the Bay Street apartment. The defendant's wife agreed.

Stenstream and his girl friend returned to his apartment at approximately 9:45 p.m. He sent a text message to the defendant to confirm whether the defendant was still there. The defendant did not respond. There was an unfamiliar automobile in the driveway (the victim's rental vehicle). Stenstream's girl friend waited in his automobile. He then went up to his apartment and shortly thereafter returned to the automobile. Stenstream brought his girl friend upstairs to his apartment and instructed her to go straight to his bedroom, to keep her head down, and not to look around. As she made her way through the apartment, she observed blood on the floor and on the couch.

Stenstream found the defendant and the victim in a spare bedroom. The victim was lying on his back, his eyes and mouth were open, and he was not moving. The defendant was holding a package of peas or ice to the victim's head and was telling the victim to “wake up.” Stenstream asked what was going on. The defendant replied, “Don't worry about it. Close the door.” Stenstream left, but returned shortly thereafter suggesting that the defendant telephone an ambulance.9 Stenstream asked again what

was going on. The defendant said, “Fucking Ace.”10 Stenstream again asked the defendant to arrange for an ambulance. The defendant said, “I'll take care of it. We should get him to the hospital.”

The defendant lifted the victim and started carrying him down the stairs. The defendant was struggling and asked Stenstream for help. Stenstream was reluctant, but agreed. Gabriel came out of his apartment. He could not find a pulse and noted that the victim was not moving. Stenstream observed that the victim's chest was blue and his legs were stiff. Gabriel opened the door to the back seat of the victim's rental vehicle, and the defendant and Stenstream put the victim inside.

The defendant went to Lucia's apartment, where he spoke with his wife, who by then had arrived. After inquiring about the victim, the defendant's wife went out to the victim's rented automobile where she saw him in the back seat. She observed that the victim's eyes were open and he was not moving; his wrist was by his forehead in a fixed position. She started crying and screaming, and yelled at the defendant, He's dead!” The defendant drove off with the victim.11

The defendant's wife went inside Stenstream's apartment, and he gave her the...

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