Commonwealth v. Morales

• Decision Date: 07 November 2003
• Parties: COMMONWEALTH vs. EDDIE MORALES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

440 Mass. 536

800 NE 2d 683

COMMONWEALTH vs. EDDIE MORALES.

Supreme Judicial Court of Massachusetts, Hampden.

November 7, 2003.

December 11, 2003.

Present: Greaney, Spina, Cowin, Sosman, & Cordy, JJ. Janet Hetherwick Pumphrey for the defendant

Marcia B. Julian, Assistant District Attorney, for the Commonwealth.

COWIN, J.

A jury convicted the defendant of murder in the first degree on grounds of deliberate premeditation and extreme atrocity or cruelty. On appeal, the defendant's primary claim is that the trial judge erred by declining to order a change of venue and that therefore he was denied his right to a jury of a fair and representative cross section of the community. The defendant further alleges a denial of his right to a fair trial due to witness intimidation, the publication of a photograph of the jurors, the behavior of a distracting juror, and the admission of a statement that the defendant threatened to kill a witness as consciousness of guilt evidence. In addition, the defendant asserts that the judge erred in denying a motion for a mistrial due to a display of emotion by a Commonwealth witness. He also maintains that he was impaired in presenting his defense of self-defense by the judge's refusal to ask a voir dire question about self-defense; by the prosecutor's "vouching for a witness" by reading excerpts of the defendant's statement to the police; and by his counsel's ineffectiveness in failing to move for a mistrial when a witness testified that the victim had "no chance to react." He also claims error in the prosecutor's closing argument. Finally, the defendant requests that this court exercise its power under G. L. c. 278, § 33E, to order a new trial or grant other relief. We reject these contentions, affirm the defendant's conviction, and also conclude there is no basis to exercise our power pursuant to G. L. c. 278, § 33E.

Facts. The jury could have found the following facts. John DiNapoli, the victim, was a twenty-three year veteran of the Holyoke police force. On the morning of December 22, 1999, while driving in an unmarked police cruiser, DiNapoli heard a radio dispatch reporting a fight at the corner of Sargent and Walnut Streets. Unarmed and in plain clothes, he transmitted to the dispatcher that he would "see what was going on." On arriving at the scene, he saw the defendant, whose appearance matched the dispatcher's description of one of the men involved in the altercation. As the defendant fled on foot, DiNapoli gave chase in the cruiser. At some point, the defendant stopped running and began firing a gun at the cruiser. DiNapoli put the cruiser in reverse and slowly backed away, but the defendant pursued the vehicle and continued to fire. DiNapoli had been shot five times and could not be resuscitated by paramedics who were called to the scene. (There were ten bullet holes in DiNapoli's vehicle.) The defendant fled, discarded his gun, and managed to make his way to Scranton, Pennsylvania, where he was apprehended by local police on December 27, 1999, and confessed to them that he had shot Officer DiNapoli. Massachusetts State police traveled to Pennsylvania and the defendant also gave a statement to them.

1. Change of venue. Because of the extensive publicity surrounding the killing of Officer DiNapoli and the capture of the defendant, the defendant moved for a change of venue. See Mass. Crim. P. 37 (b), 378 Mass. 914 (1979). The motion was denied after a hearing and again denied after reconsideration. The defendant claims that failure to grant a change of venue deprived him of his constitutional right to a trial by an impartial jury. The following background is useful in assessing this challenge.

The bulk of the publicity cited by the defendant to support his motion was printed in the Springfield Union-News, a daily newspaper in Hampden County, which reached approximately 136,000 readers. Starting the day after the shooting, the Union-News published stories about DiNapoli, about the defendant's flight and capture, and about public reaction to the shooting. On December 27, 1999, the date of the defendant's arrest, one article reported that an attendee at DiNapoli's wake said that "it was the first time they heard people shouting hooray in a funeral home." Another story the same day reported that "[h]undreds of people" waited outside in the cold to pay their respects to DiNapoli. Subsequent articles in December, 1999, referred to the defendant's confession and prior criminal history. In January, 2000, Union-News stories detailed the establishment of a memorial fund in DiNapoli's honor and the expected passage of a Holyoke city council ordinance which called for affixing "WWJDD" decals ("What would John DiNapoli do") on all police cruisers. Follow-up stories about DiNapoli's family and posthumous honors appeared in the Union-News at least until July, 2000, and news about the defendant also received continuing coverage. The defendant further cited over one dozen stories about DiNapoli's death in the Boston Globe and Boston Herald including a December 30, 1999, Herald report bearing the headline: "DA: Suspect knew DiNapoli was a cop." In addition, the defendant points to media coverage in the Telegram & Gazette (a newspaper in the adjacent county of Worcester with a circulation of 147,000), television reports (including a local broadcast of DiNapoli's funeral), and a "web board," on which readers posted comments such as "He is Puerto Rican Trash" and "I actually hope he gets off . . . so he can get what he really and truly deserves, AN AUTOPSY." As a result of this publicity, the vast majority of the venire was aware to some extent of the events surrounding DiNapoli's death. Of the sixteen jurors eventually empanelled, all knew about his death and all but one explicitly stated that they had received at least some of their information from the extensive media coverage.

The defendant maintains that he was denied his right to a fair trial because we should presume that the venire were so prejudiced by the pretrial publicity that it was impossible to empanel an impartial jury. See, e.g., Sheppard v. Maxwell, 384 U.S. 333 (1966); Rideau v. Louisiana, 373 U.S. 723 (1963). He bases this "presumptive prejudice" claim on the alleged "pervasive" and "inflammatory" media coverage to which the entire venire was exposed and the fact that, according to him, fifty-seven per cent of the jurors were excused for cause. Two factors create this presumption of prejudice. First, "the publicity must be both extensive and sensational . . . . If the media coverage is factual as opposed to inflammatory or sensational, this undermines any claim for a presumption of prejudice" (emphasis in original). United States v. Angiulo, 897 F.2d 1169, 1181 (1st Cir.), cert. denied sub nom. Granito v. United States, 498 U.S. 845 (1990). We have reviewed the record submitted by the defendant in support of his motion for a change of venue and we find the media coverage not so inflammatory or sensational as to require a presumption of prejudice. See id. Cf. Rideau v. Louisiana, supra (film of defendant's detailed twenty-minute confession to murder repeatedly televised by local station). Although we find the media coverage was extensive, it was primarily factual, summarizing the incident, the charges against the defendant, and his arrest in Pennsylvania. The coverage frequently did mention the defendant's confession, his criminal record, and the fact of the victim's twenty-one year service as a police officer, his popularity in the community, and the memorials in his honor. These references, however, are "significantly short of the type of emotionally charged, inflammatory, sensationalistic coverage needed to support a presumption of prejudice." See United States v. Angiulo, supra (no presumption of prejudice from frequent references to "reputed crime figure Genaro Angiulo," "mafia boss Angiulo," or "reputed leader of Boston underworld"). Further, the majority of the articles that contained emotional material appeared in the immediate aftermath of the murder while empanelment did not start until about fourteen months later. By that time, reporting on the subject had decreased and was more factually based. See Delle Chiaie v. Commonwealth, 367 Mass. 527, 532 (1975) (where no adverse publicity later than nine weeks prior to start of trial, court stated: "While it is true that many of the articles might well have been prejudicial if read and remembered by members of the jury, the petitioner has failed to establish this to be a fact"). The voir dire questioning of the jurors established that, while most jurors recalled media coverage of the murder and the defendant's arrest, very few in the venire appeared to have been exposed to more recent media coverage. This suggests that the intensity of the media coverage that existed in December, 1999, had dissipated over time.

A second factor that may support a presumption of prejudice is the difficulty in empanelling jurors who appear impartial. United States v. Angiulo, supra at 1181-1182. "Where a high percentage of the venire admits to a disqualifying prejudice, a court may properly question the remaining jurors' avowals of impartiality, and choose to presume prejudice." Id. Although the defendant here claims that almost sixty per cent of the venire was excused for "some ground of partiality," that is not the relevant inquiry. What is relevant is the percentage of the venire disqualified for cause due to prejudice from pretrial publicity. See Commonwealth v. Clark, 432 Mass. 1, 6 (2000). We have reviewed the record and only fourteen jurors,¹ or approximately twenty-five per cent of the venire, were disqualified for exposure to media coverage. (The remaining jurors excused for cause were excused for reasons such as feelings about police officers, relationship to victim, bias against a defendant who did not testify or present evidence, or general feelings about guns...