Commonwealth v. MIRANDA

• Decision Date: 27 September 2010
• Docket Number: SJC-10568.
• Citation: 458 Mass. 100,934 N.E.2d 222
• Parties: COMMONWEALTH v. Wayne MIRANDA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

458 Mass. 100

934 N.E.2d 222

COMMONWEALTH

v.Wayne MIRANDA.

SJC-10568.

Supreme Judicial Court of Massachusetts,Bristol.

Argued April 6, 2010.

Decided Sept. 27, 2010.

COPYRIGHT MATERIAL OMITTED.

Robert F. Shaw, Jr., Brighton, for the defendant.

Rachel J. Eisenhaure, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, & GANTS, JJ.

IRELAND, J.

In July, 2008, the defendant, Wayne Miranda, was convicted of murder in the second degree, ¹ assault and battery by means of a dangerous weapon (a firearm), and unlawful possession of a firearm. Represented by new counsel, he appeals from these convictions, claiming (1) that reversal is required because two witnesses at trial were paid consideration for their testimony contingent on his conviction; (2) error in the denial of his motion for required findings of not guilty; (3) prejudicial error in the prosecutor's closing argument; and (4) that the judge erroneously failed to instruct the jury on withdrawal from a joint venture. We granted the defendant's application for direct appellate review. Although we conclude that a prosecutor cannot participate in an offer of payments to fact witnesses for testimony contingent on the outcome of litigation, we reject the defendant's claims and affirm the convictions.

Based on the Commonwealth's evidence, the jury could have found the following facts. Shortly after receiving a dispatch at 8:32 p.m., on October 10, 2005, concerning “shots fired,” police discovered Christopher Barros lying on the ground by a picket fence in the back yard of 40 Russell Street in New Bedford. The victim had been shot twice and had an “L” shaped laceration on one of his hands. He was transported to a hospital. He died as a result of one of the gunshot wounds.

Three witnesses, Kim Deann Reis, John G. Andrade, and Carmen Rodriguez, observed events that immediately preceded the shooting but did not see the shooting itself. Reis did not give a formal statement to police until two years after the event because she was “scared.” She agreed to testify at trial in exchange for financial assistance in relocating and in exchange for consideration with respect to an unrelated drug charge. Andrade and Rodriguez each spoke with police immediately following the shooting. Subsequently, and before the defendant's trial, each was paid $3,000 by the New Bedford Area Chamber of Commerce pursuant to a reward program it sponsored. The $3,000 payment was given in return for information Andrade and Rodriguez respectively provided that helped lead to the defendant's indictment. ²

With respect to the events that preceded the shooting, an argument between the victim and the defendant's older brother, Fagbemi Miranda (Fagbemi), ³ first drew the attention of nearby residents. It took place on Purchase Street, in front of the apartment building in which Reis resided. ⁴ Reis had known the defendant and Fagbemi, and recently had been introduced to, and spent time with, the victim. On the sidewalk, near Fagbemi and the victim, Reis saw a male standing near a tan automobile.

Andrade and Rodriguez, who were in Rodriguez's fourth floor apartment on Bedford Street near the corner adjoining Purchase Street, also heard an argument outside. From a window overlooking Purchase Street, they observed Fagbemi, whom they knew, arguing with a man they did not know (the victim). They also observed another man who was on the sidewalk next to a black automobile. ⁵ A few minutes later, the defendant left his house and joined in the argument between Fagbemi and the victim. He then went back inside his house. Soon thereafter, the defendant came back out of his house holding a black gun. ⁶ His grandmother followed him, attempting to prevent him from leaving and trying to get him to return inside. The defendant jumped over the railing on the porch of the house, went over to the victim, and aimed the gun at him.

Reis heard the victim say, “Are you serious, Waynie? Are you serious? It's like that? It's like that?” Andrade and Rodriguez observed the victim raise his arms up and Andrade heard the victim say, “No,” when the defendant pointed the gun at him. Andrade testified that Fagbemi walked over to the defendant saying, “No, no, no.” The victim took off running up Purchase Street and then turned down Reis's driveway. ⁷ The defendant ran after the victim, followed by Fagbemi, and next by the man who had been standing near the tan or black automobile. Reis, from a window, yelled to the defendant to think of his daughter.

The accounts vary on what next took place. Reis, who had a limited view from her position, testified that the defendant stopped running at the end of her driveway where the driveway met the back yard. Fagbemi caught up to the defendant and the two exchanged words. ⁸ Reis saw the defendant hand the gun to Fagbemi, saw Fagbemi raise his arm and point the gun toward the direction of a fence in her back yard, and then heard two gun shots. She dialed 911.

Andrade and Rodriguez, who also had a limited view, heard two shots after the men went down Reis's driveway. They did not see the defendant hand the gun over to anyone else. After hearing the shots, Andrade dialed 911. ⁹ Andrade and Rodriguez saw the defendant and Fagbemi leave the driveway. As they were leaving, Andrade saw one of the Miranda brothers pass the gun to the other, but could not say which one passed the gun or which one received the gun. ¹⁰ Andrade and Rodriguez watched as the defendant and Fagbemi returned to their house. The other man returned to the automobile that he previously had been standing near and left in it.

From Reis's driveway, police recovered two nine millimeter discharged cartridge casings that were manufactured by Remington Peters. No weapon was recovered. The Commonwealth's firearms identification expert gave his opinion that, based on his microscopic examinations, the discharged cartridge casings were fired from the same weapon. Particles of gunshot powder residue were detected on Fagbemi's hands. ¹¹ Police found papers belonging to the victim and to Casey DePina inside the victim's automobile.

The defendant spoke with police on the night of the shooting at a police department. He agreed to speak with them after first being advised of his Miranda rights and after being informed that the interview was going to be recorded. The defendant denied any involvement in the shooting. He stated that he had heard shots but had been inside his home working on his computer.

The defendant did not testify at trial. His trial counsel attacked the credibility of Reis, Andrade, and Rodriguez in various ways, including bringing out the fact that each received some form of consideration, including monetary consideration, in exchange for their testimony. Also, through the cross-examination of Andrade and several police witnesses, the defense suggested that others may have perpetrated the shooting, and that the prosecution's investigation was faulty for not properly investigating these other possibilities. ¹² It was brought out that Andrade's son, Tyson DePina, was an associate of Brandon Gonsalves, both of whom (along with others) were indicted in Federal court on drug charges. Gonsalves had been the target of a Federal wiretap and was recorded before the victim's shooting as warning that persons should stay away from the victim and out of the victim's automobile because he had received “too many passes.” Gonsalves and Tyson DePina were indicted, as well as a man having the first name “Craig,” which police learned was the same name as an individual who had tried to shoot the victim approximately one week before October 10, 2005. Andrade was recorded during the wiretap after October 10, 2005, using Gonsalves's telephone to call Tyson DePina. Andrade spoke of the victim's shooting and said that Casey DePina drove the automobile at the scene.

The defendant's trial counsel called three witnesses: the defendant's grandmother, who testified that he was home working on the computer at the time of the shooting, and two childhood friends of the defendant, who testified that in the hours preceding the shooting, they had installed carpet at the defendant's home and saw the defendant there. In support of his defense of misidentification, the defendant's trial counsel called Geoffrey Loftus, a professor of psychology at the University of Washington in Seattle. Dr. Loftus testified concerning the process and quality of memory, and factors that can interfere with the ability to perceive and to recollect.

1. Payments to witnesses. As has been stated, before trial, Andrade and Rodriguez received monetary consideration, namely $3,000 each, from the chamber of commerce pursuant to its reward program for information each provided that helped lead to the defendant's indictment. Under the program, the chamber of commerce would pay $3,000 for information that helped lead to an indictment in an unsolved homicide, and an additional $2,000 if the information provided led to a conviction. The office of the district attorney did not indorse the program, provide any funding, or participate in the decision-making process regarding whether payment should be made. The chamber of commerce, however, conditioned payment on receipt of a letter from the district attorney's office (which the prosecutor provided for Andrade and Rodriguez) stating that a particular person did provide information in connection with a specific unsolved homicide that led to indictment, conviction, or both (verification letter). ¹³ Thus, at the time of the defendant's trial, the prospect of Andrade's and Rodriguez's receipt of an additional $2,000 was conditioned on the outcome of the prosecution of the defendant, that is, conditioned on his conviction. ¹⁴ The defendant claims that, by providing a verification letter to the chamber of commerce, the prosecutor “knowingly participated in facilitating cash payments to [his...