Commonwealth v. Mercado

• Decision Date: 07 August 2013
• Docket Number: SJC–10832.
• Citation: 466 Mass. 141,993 N.E.2d 661
• Parties: COMMONWEALTH v. Thomas MERCADO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

466 Mass. 141

993 N.E.2d 661

COMMONWEALTH

v.Thomas MERCADO.¹

SJC–10832.

Supreme Judicial Court of Massachusetts,

Plymouth.

Argued April 5, 2013.

Decided Aug. 7, 2013.

Stephen Paul Maidman, Springfield, for the defendant.

Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth.

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

BOTSFORD, J.

A Superior Court jury found the defendant, Thomas Mercado, guilty of murder in the first degree; the jury reached their verdict on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder. Before us is the defendant's appeal from his conviction and the denial of his motion for a new trial. The defendant claims that (1) the defendant's trial counsel ² was ineffective in preparing and presenting the defendant's motion to suppress his statement to police; (2) the trial judge violated the defendant's right to a public trial by closing the court room during a witness immunity hearing; and (3) the trial judge's instructions on the Commonwealth's burden of proof were erroneous. The defendant also argues that in the circumstances of this case, this court should exercise its power under G.L. c. 278, § 33E, and order a new trial. Although we conclude, in reviewing the case under § 33E, that the evidence was insufficient to support the defendant's conviction on the theory of felony-murder, we affirm the defendant's conviction on the theories of deliberate premeditation and extreme atrocity or cruelty, and also affirm the denial of his motion for a new trial.

Background. We recite the facts as the jury could have found them, reserving other facts for later discussion. The victim was shot and killed sometime on the night of February 6, 2006, or the early morning of February 7, 2006, in an apartment building in Brockton. The evidence of the incident itself, introduced through the testimony of four different witnesses who were present at the shooting, all of whom had been granted immunity pursuant to G.L. c. 233, § 20E, centered on the interaction of various individuals in two apartments on the second floor of the building, the second-floor common hallway, and a stairway leading down from that floor. One apartment was that of Jeannette Martinez, and the other apartment was Ivan Correia's.

On February 6, 2006, Martinez was in her apartment with Corrin Cripps. Both women frequently used “crack” cocaine, and they had spent that day smoking it together in Martinez's bathroom. At some point that evening, Cripps went next door to Correia's apartment because she believed she was owed cocaine in payment for sexual favors she had provided the night before to one of the men in that apartment. When she entered, the victim, his brothers Jair Barros and Michael Gomes, and Correia were in the apartment. The men were seated at a table, putting cocaine into bags, and there was a black gun on the table. Cripps ingested a line of cocaine, and then returned to Martinez's apartment.

By that time, the defendant, whom Cripps had known for three or four years, had arrived at Martinez's apartment with his “cousin” Pelon, who was Martinez's drug supplier. There was a knock on Martinez's apartment door, and two of the men from Correia's apartment—Correia and Barros—asked for scissors and baking soda, implements they needed for their cocaine packaging operation. Cripps opened the door and handed one of them baking soda from Martinez's kitchen, and the men left. The defendant asked Cripps what the men were doing in Correia's apartment, and Cripps answered that she did not know but that there was cocaine on the table. The defendant asked her to “[g]o over there and see.” Cripps believed the defendant wanted to rob the men in Correia's apartment.

Despite the defendant's request, Cripps did not go to Correia's apartment at that moment, but instead went into Martinez's bedroom for about thirty minutes. Martinez was also in the bedroom smoking crack cocaine. When Cripps ultimately emerged from the bedroom, she went into the kitchen to find the defendant, Pelon, and a third man unknown to Cripps standing together talking. From the bedroom, Martinez heard the defendant tell Pelon that “they were going to kill the guy.” ³ The third man left the apartment shortly after the discussion in the kitchen.

At some point, there was another knock at Martinez's apartmentdoor, and the people knocking asked for a razor and baggies.⁴ The defendant was standing near the door at the time, and said, “You ain't getting dick. Have your momma go buy you some baggies.” Thereafter, Cripps again left Martinez's apartment and returned to Correia's apartment. Sometime later, Cripps left Correia's apartment to go back to Martinez's apartment, and as she walked out, the victim, his brother Gomes, and Correia were behind her. The defendant, who was wearing a sweatshirt with the hood up, was standing in the hallway against the wall.

When Gomes stepped into the hallway, he saw the defendant and also noticed a second man on the stairs who appeared to be approaching him. Gomes and the second man began to fight, in the course of which they fell together down the stairs. As they fell, Gomes heard five or six gunshots behind him. Barros, who was still inside Correia's apartment, also heard five gunshots. Barros opened the apartment door to the hallway and saw a hand point the gun and shoot the victim in the face. Cripps, who had walked into Martinez's apartment and closed the door after leaving Correia's apartment, heard “boom, boom, boom, boom, boom” coming from outside the apartment. Meanwhile, after Pelon had left, Martinez looked through the peephole in her apartment door and saw the defendant, whom she had seen with a gun in the apartment, standing in the hallway. Martinez saw the defendant shoot a gun and run off.

After the fight in the stairway, when Gomes was on the first floor of the building, he saw the defendant descending the stairs wearing a hood and holding something in his hand. Gomes ran outside, and the defendant followed him and then turned and ran. In the meantime, Barros sought to tend to the victim, who was slouched on the floor of the second-floor hallway with multiple gunshot wounds and bleeding heavily.

The victim sustained a total of six gunshot wounds, including fatal wounds to his neck and abdomen. Six casings, all fired from the same weapon, were discovered in the second-floor hallway, and bullet fragments were found on the hallway floor, in one of the walls, in a closet in an adjacent apartment, and underneath a bloodstained portion of the hallway rug.

The defendant's trial took place in June, 2009. While his direct appeal was pending in this court, the defendant, represented by new counsel, filed a motion for a new trial on October 6, 2011. In March, 2012, the trial judge denied the motion without an evidentiary hearing. The defendant timely appealed, and the consolidated appeals from his conviction and the denial of his motion for a new trial are now before this court.

Discussion. “When this court reviews a defendant's appeal from the denial of a motion for a new trial in conjunction with his direct appeal from an underlying conviction of murder, we review both under G.L. c. 278, § 33E.” Commonwealth v. Alicea, 464 Mass. 837, 840, 985 N.E.2d 1197 (2013), citing Commonwealth v. Gomez, 450 Mass. 704, 711, 881 N.E.2d 745 (2008).

1. Ineffective assistance of counsel. The defendant challenges the denial of his motion for a new trial, in which he claimed ineffective assistance of trial counsel in preparing and presenting a pretrial motion to suppress the testimony of Robert Clements, a Massachusetts State police trooper who interviewed the defendant in Puerto Rico. The background facts are these. The defendant filed the motion to suppress on December 2, 2008, on the ground that the interview in Puerto Rico about which Clements would testify constituted an unlawful interrogation in violation of the defendant's rights under art. 12 of the Massachusetts Declaration of Rights. The defendant's trial counsel included in his affidavit that accompanied the motion information that the defendant, who was at the time serving a sentence at a prison in Puerto Rico, had been interviewed away from the prison at a Puerto Rico office of the Federal Bureau of Investigation (FBI) by at least three law enforcement members, including a representative from the FBI, the Massachusetts State police, and the Brockton police department.

On the first day of the hearing on the defendant's motion to suppress, Clements testified that he had interviewed the defendant for several hours in “an office setting” in a prison where the defendant was serving a sentence for a shooting in Puerto Rico, that the defendant was wearing wrist and ankle cuffs for the duration of the interview, and that none of the officers present read the defendant his Miranda rights at any point during the interview.

On the second day of the hearing, the prosecutor and the judge, who was not the trial judge, stated their shared impression that the interview had taken place at the prison. Defense counsel argued strenuously that the interview had instead taken place at an office of the FBI. In response, the motion judge stated, “I'm not sure that ... makes much of a difference” and that she did not see the significance of “whether the interview happened in prison or in another building” because either way “he's in custody with the prison officials.” Nonetheless, in her memorandum of decision denying the defendant's motion to suppress, the motion judge found as a fact that the defendant was interviewed in an office at the prison. She concluded that “[n]othing in the evidence adduced suggests that there was any coercive aspect to the interrogation of [the defendant] other than the normal restraints incident to incarceration” and, therefore, Miranda warnings were not required under Commonwealth v. Larkin, 429 Mass. 426, 432–436, ...