Commonwealth v. Raposa, SJC-08657 (Mass. 1/15/2004)

• Decision Date: 15 January 2004
• Docket Number: SJC-08657.
• Citation: 440 Mass. 684
• Parties: COMMONWEALTH vs. ROBIN A. RAPOSA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

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COMMONWEALTH vs. ROBIN A. RAPOSA.

SJC-08657.

Supreme Judicial Court of Massachusetts.

Bristol.

October 10, 2003.

January 15, 2004.

Present: Marshall, C.J., Spina, Cowin, Sosman, & Cordy, JJ.

Constitutional Law, Waiver of constitutional rights, Admissions and confessions. Evidence, Admissions and confessions, Relevancy and materiality, Hearsay. Waiver. Joint Enterprise. Practice, Criminal, Argument by prosecutor, Instructions to jury, Capital case.

Indictments found and returned in the Superior Court Department on December 17, 1998.

A motion to suppress evidence was heard by John A. Tierney, J., and the cases were tried before Catherine A. White, J.

Donald A. Harwood for the defendant.

Kevin Connelly, Assistant District Attorney (John Moses, Assistant District Attorney, with him) for the Commonwealth.

CORDY, J.

A jury found the defendant guilty of conspiring to murder her husband and murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty. On appeal she contends that (1) her motion to suppress the statements she made to police should have been allowed; (2) statements made by her alleged joint venturer as well as a sexually explicit letter she wrote to him while awaiting trial were improperly admitted in evidence; (3) testimony from a witness that would have been helpful to her case was wrongly excluded from evidence; (4) the prosecutor's closing argument was improper and prejudicial; and (5) the judge's instruction regarding the Cunneen factors was deficient in not requiring unanimity as to any of them. See Commonwealth v. Cunneen, 389 Mass. 216, 227-229 (1983). We affirm the defendant's convictions and decline to exercise our power under G. L. c. 278, § 33E.

1. Background. We recite the facts in their light most favorable to the Commonwealth, reserving some details for discussion in conjunction with the issues raised. See Commonwealth v. Gaboriault, 439 Mass. 84, 85 (2003). At approximately 2:50 P.M. on September 6, 1998, the defendant told her neighbors that someone had shot her husband, Robert Raposa (Robert). Police found Robert dead, with blood on his face, arms, and upper body, on the floor of a trailer behind the home he shared with the defendant and their daughter on Varley Street in Fall River. The medical examiner's office subsequently determined the cause of Robert's death to be two gunshot wounds and a blunt force injury to his head; Robert also sustained two parallel cuts behind his right ear, consistent with injury by knife or blade. The time of death was estimated to be between noon and 3 P.M.

The evidence of the defendant's premeditation and of her motive for involvement in the murder was substantial. In the months leading up to Robert's death, the defendant had been having an affair with Jason Reynolds, a nineteen year old man who had moved into the Raposas' home in June, 1998. She had repeatedly told acquaintances that her relationship with Robert was "tenuous," that she wished Robert were dead, that she would be better off if he were dead, that she was tired of paying Robert's heroin debts, that she was angry at Robert for taking her spot in a heroin treatment clinic, that she intended to find a "real man," that she wanted to kill Robert, that she intended to "blow his F'ing head off," and that she had paid someone to "put him down."

At approximately 1:30 P.M. on the day of the murder, before alerting her neighbors to Robert's apparent demise, the defendant arrived at the home of Kim Oliveira, a woman whom she had recently taken into her confidence and befriended.¹ She told Oliveira that she had used a hammer to hit Robert twice on the back of the head, and had then shot him.² She asked Oliveira to go for a ride with her to the water and to help her find a place to dispose of the weapons. They drove to Dighton Landing on the Taunton River, where the defendant threw the weapons (a rifle and a ball peen hammer), wrapped in cloth, into the water. She also asked Oliveira to confirm an alibi for her by telling the police that they had been together from 12:30 to 2:30 P.M. on that day. Oliviera agreed and conveyed this false alibi to the police when they interviewed her early on in their investigation.

Later that same evening, after Robert's body had been found, the defendant told friends that a police officer had informed her that Robert was beaten with a hammer but "wouldn't go down, so they shot him in the temple," and that Robert had been shot twice in the head.

On October 2, the defendant was arrested for Robert's murder. In an interview with police following her arrest, the defendant denied any involvement in her husband's murder, denied that there had been a romantic relationship between herself and Reynolds, and (contrary to what she had told her friends on September 6) told the officers that she had only become aware that her husband was shot twice in the head after the autopsy was performed on September 8.

In January, 2000, while the case was awaiting trial, Oliveira came forward and told police that the defendant had admitted her involvement in the murder, and that she had helped the defendant dispose of the weapons. She also told police that Reynolds had admitted to her that he was the one who actually shot Robert. After Oliveira came forward, police searched the area at Dighton Landing, and found a ball peen hammer in the water. They also learned that a passerby had previously discovered a .22 caliber rifle in the water in that same area, and had turned the weapon in to the Dighton police station. The rifle was located and identified as the same rifle that Reynolds had borrowed from a friend just prior to the murder. Forensic evidence linked bullets taken from Robert's head to .22 caliber ammunition that was discovered missing from a box owned by another of Reynolds's friends also just prior to the murder. At trial, the prosecution maintained that the defendant either alone or as a joint venturer with Reynolds murdered Robert.³

2. Discussion. a. Motion to suppress. The defendant contends that the motion judge erred by failing to suppress the statement she made to police on October 2, 1998.⁴ Where, as here, the evidence before the motion judge consisted primarily of oral testimony, "[t]he determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw and heard the witnesses, and not of this court." Commonwealth v. Moon, 380 Mass. 751, 756 (1980). Although we independently review the motion judge's application of constitutional principles, we accept his findings of fact absent clear error, and grant substantial deference to his ultimate conclusions. Commonwealth v. Jones, 439 Mass. 249, 254-255 (2003).

The motion judge found that the defendant, a thirty-six year old college educated part-time substitute teacher, was given Miranda warnings on October 2, 1998, and that she knowingly, intelligently, and voluntarily agreed to answer questions about her husband's murder. Although the defendant refused to sign the Miranda rights form (as well as refusing an offer to have the interview recorded), this did not preclude the motion judge from finding that a valid waiver of Miranda rights occurred. See Commonwealth v. Ortiz, 435 Mass. 569, 577 (2002). Here, the testimony of Sergeant John DeMello of the Fall River police and Detective Ronald Blais of the State police at the motion hearing supports the judge's findings and conclusion that there was a valid oral waiver.

The defendant's further claim that the interviewing officers were aware that the defendant was represented by counsel on another matter (and presumably should not have interviewed her without his presence) is unavailing, where the police questioning stopped as soon as she asked to speak to her attorney.

The defendant finally contends that her statement should be suppressed because she was not advised of her right to make a telephone call in violation of G. L. c. 276, § 33A. See Commonwealth v. Jones, 362 Mass. 497, 502-503 (1972). The defendant did not include this ground as a basis for suppression either in her written motion or in her affidavit, nor does it appear from the record that this argument was otherwise raised before the motion judge. See Mass. R. Crim. P. 13 (a) (2), 378 Mass. 871 (1979). Consequently the judge made no specific findings with regard to it. We consider the matter only for the purpose of ascertaining whether there is a substantial likelihood of a miscarriage of justice. Based on our review of the testimony given at the hearing, we can safely conclude that there is no such likelihood here. The testimony amply supports a finding that the defendant was orally informed of her statutory right.⁵ There was no error.

b. Admission of Reynolds's statements. The defendant contends that the judge erroneously admitted in evidence statements made by Reynolds after the murder. We conclude there was no error. "It is well settled that out-of-court statements by joint criminal venturers are admissible against the others if the statements are made 'both during the pendency of the cooperative effort and in furtherance of its goal.'" Commonwealth v. Colon-Cruz, 408 Mass. 533, 543 (1990), quoting Commonwealth v. White, 370 Mass. 703, 708-709 (1976). Although this exception to the hearsay rule "does not apply [to statements made] after the criminal enterprise has ended . . . [it] does apply where the joint venturers are acting to conceal the crime that formed the basis of the enterprise." Commonwealth v. Angiulo, 415 Mass. 502, 519 (1993).⁶ In this case, the Commonwealth laid a proper foundation for the admission of Reynolds's statements by introducing evidence independent of the statements, sufficient to demonstrate that after Robert's murder the defendant and Reynolds continued to cooperate in an effort to conceal their involvement in his death. That foundation included evidence that Reynolds paged the...