Commonwealth v. Rivera

• Decision Date: 16 July 1999
• Citation: 430 Mass. 91,712 NE 2d 1127
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. ANGEL LUIS RIVERA.

430 Mass. 91

712 NE 2d 1127

COMMONWEALTH v. ANGEL LUIS RIVERA.

Supreme Judicial Court of Massachusetts, Hampden.

April 6, 1999.

July 16, 1999.

Present: WILKINS, C.J., LYNCH, FRIED, MARSHALL, & IRELAND, JJ.

James Hammerschmith, Committee for Public Counsel Services, for the defendant.

Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.

MARSHALL, J.

The defendant, Angel Luis Rivera, appeals from his conviction of accessory before the fact to murder in the first degree on a theory of deliberate premeditation. G. L. c. 274, § 2. On appeal, he argues that his conviction should be reversed because the prosecutor improperly elicited on direct examination testimony from several witnesses regarding their obligation to testify truthfully under their agreement with the government, and improperly vouched for those witnesses' veracity in her closing argument; improperly elicited prior consistent statements from two witnesses; and argued facts not in evidence. He seeks a new trial on the basis of the cumulative effect of these alleged errors pursuant to G. L. c. 278, § 33E. See Commonwealth v. Angiulo, 415 Mass. 502, 507-510 (1993). We affirm the conviction and decline to exercise our statutory power.

The defendant was the president of the Latin Kings at the Westover Job Corps in Chicopee. As president, the defendant had authority within the Latin Kings to conduct initiations, order "missions," and mete out punishment. The punishment for refusing a mission to kill was death. In his capacity as president, the defendant ordered three Latin Kings members to murder the victim, Juan Cruz Santiago, another Job Corps participant and Latin Kings member. Although the victim was believed to be homosexual and the Latin Kings code prohibited the admission of homosexuals into its membership, the previous president had recruited the victim because he worked in the office of a Job Corps administrator and had access to her files. Immediately prior to his murder, the victim had refused to kill the administrator, despite being ordered to do so by the defendant. When the victim failed to perform that "mission," the defendant announced at a meeting of the gang at which the victim was not present that the victim would have to be killed. The defendant later ordered three gang members, Miguel "Cartoon" Lozada, Heriberto "Peachy" Hernandez, and Jose Robles, to persuade the victim to leave the Job Corps campus with them, and then to kill him. The defendant gave them a knife with which to accomplish this mission, and told them to bring him the victim's eye on their return to prove that they had done as ordered.

On the afternoon of January 30, 1994, Lozada, Hernandez, and Robles carried out their "mission" by beating and strangling the victim in a wooded area not far from the Job Corps campus and throwing him, still breathing but unconscious, into the Connecticut River. They then reported the murder to the defendant. Referring to the victim, the defendant told an assembly of Latin Kings, "May this be an example to all of you of what could happen to you if you gather against me or don't carry out missions."

The police recovered the victim's body from the river, but did not investigate his death until two years later when Efrain "Frankie" Torres, another Latin Kings member at the Job Corps, gave a series of statements to the police, beginning with one in which he suggested that they look more closely at the victim's death. After obtaining statements from Lozada, Hernandez, and Robles, the police arrested the defendant on April 4, 1996.

The three killers, Lozada, Hernandez, and Robles, each testified, pursuant to plea bargain agreements with the Commonwealth, that he had participated in the victim's murder and that the defendant had ordered the killing. Torres testified, pursuant to an arrangement with the United States Attorney, that he was present when the defendant ordered the killing. Borge and Virgilio Figueroa, brothers who were Latin Kings members in Springfield, testified, pursuant to arrangements with the United States, that while they were housed in Hampden County jail with the defendant in early 1997, he confessed to ordering the three men to kill someone for having failed to carry out a mission to "terminate" a "teacher" at the Job Corps.

1. Witnesses' obligation to testify truthfully. The prosecutor elicited from the six key prosecution witnesses that they had agreed to give truthful testimony in return for being allowed to plead guilty to murder in the second degree (Lozada, Hernandez, and Robles) or for consideration in sentencing in pending Federal cases (Torres and the Figueroa brothers). The defendant asserts that the admission of the obligation to testify truthfully as part of the direct, rather than redirect, examinations of certain of these witnesses violates our holding in Commonwealth v. Ciampa, 406 Mass. 257 (1989), and improperly suggested to the jury that the prosecutor was in a position to vouch for the truth of their testimony. He further argues that in her closing argument the prosecutor improperly vouched for the veracity of the witnesses who testified pursuant to agreements.

We describe first the circumstances in which the challenged testimony was elicited. In their opening statements both the prosecutor and defense counsel indicated to the jury that the credibility of the witnesses testifying under agreements with the Commonwealth or the United States would be central to their case. It was accordingly clear from the outset that, because of the agreements, the defendant would challenge the witnesses' credibility on cross-examination. See Commonwealth v. Ciampa, supra at 264. During the prosecutor's direct examination of Lozada, Hernandez, and Torres, each testified about his obligation to testify truthfully.¹ Defense counsel did not object to the questions which garnered these responses, nor did he move to strike the responses. Defense counsel did, however, cross-examine each of the three witnesses at length regarding his expectations and hopes pursuant to his agreement or discussions with the government. Following the redirect examination of the first of these witnesses, Lozada, the judge carefully instructed the jury, at the defendant's request, that with respect to "any so-called promise to tell the truth as a condition of [a] plea agreement," the prosecutor did not "have either the responsibility or the duty under the law or the ability to determine what the truth is."

On direct examination of Borge Figueroa, the prosecutor asked him what he understood his obligations to be pursuant to his arrangement with the United States, to which he responded that he was obligated "[t]o tell only the truth." Defense counsel objected to this question. His objection was overruled, but the judge repeated her instruction that the prosecutor would not know whether a witness was testifying truthfully.²

Virgilio Figueroa was the last Latin Kings member to testify. In her direct examination of Virgilio Figueroa, after the witness testified that he did not have an arrangement with the United States, the prosecutor entered in evidence, over the defendant's objection, a letter stating that the United States Attorney would consider an "accurate" proffer from the witness in connection with a pending criminal investigation.³ She did not elicit from him any testimony regarding his obligation to be truthful.

Because the defendant did not object to the testimony of Lozada, Hernandez, and Torres, we determine whether it was erroneous to admit during their direct examinations testimony regarding their obligation to testify truthfully and, if so, whether those admissions created a substantial likelihood of a miscarriage of justice. See Commonwealth v. Vinnie, 428 Mass. 161, 163, cert. denied, 525 U.S. 1007 (1998). Because the defendant timely objected to the admission of Borge Figueroa's testimony on direct examination regarding his obligation to be truthful, and to the admission of the letter describing Virgilio Figueroa's arrangement with the United States, we consider whether these rulings were erroneous and, if so, whether the errors were prejudicial to the defendant. Id.

In Commonwealth v. Ciampa, supra at 261, we acknowledged that "testimony pursuant to a plea agreement, founded on a promise of truthful cooperation, and the plea agreement itself are admissible." We have also recognized that, when the government has entered into an agreement with a witness that requires truthful testimony of him, there is a risk that a jury might erroneously conclude that the government has a special ability to determine whether or not the witness is in fact telling the truth when he testifies. See Commonwealth v. Dixon, 425 Mass. 223, 233 (1997). While a prosecutor remains free to argue that a witness who testifies in exchange for favorable treatment by the government is credible, she may not "explicitly or implicitly" vouch to the jury that she knows the witness's testimony is true. Commonwealth v. Ciampa, supra at 265. Repeated, pointed references in testimony to a witness's obligation to testify truthfully under such an agreement "may impair a jury's ability to assess the witness's credibility, because the jurors may believe that, due to `the agreement's truthfulness requirement, the Commonwealth knows or can discover whether the witness is telling the truth.'" Commonwealth v. Colon, 408 Mass. 419, 445 (1990), quoting Commonwealth v. Ciampa, supra at 260, citing United States v. Wallace, 848 F.2d 1464, 1474 (9th Cir. 1988).

On direct examination the prosecution may, of course, properly bring out the fact that the witness has entered into a plea agreement and that the witness generally understands his obligations under it. Commonwealth v. Ciampa, supra at 264, and cases cited. See Commonwealth v. Martinez, 425 Mass. 382, 398 (1997). Nevertheless, to avoid the appearance of vouching by the prosecutor, "[a]ny attempt...