Commonwealth v. Rivera

• Decision Date: 09 January 2013
• Docket Number: SJC–10912.
• Parties: COMMONWEALTH v. Nathan RIVERA (and eleven companion cases ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

464 Mass. 56

981 N.E.2d 171

COMMONWEALTH

v.Nathan RIVERA (and eleven companion cases ¹).

SJC–10912.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 7, 2012.

Decided Jan. 9, 2013.

Stephen Paul Maidman, Springfield, for Nathan Rivera.

Charles K. Stephenson for Terrence Brown.

Teresa K. Anderson, Assistant District Attorney, for the Commonwealth.

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

CORDY, J.

On the morning of August 10, 2001, two armed and masked assailants entered the apartment of Karen Young, Wei Li, and Roland Chow at 40 Parker Hill Avenue in the Mission Hill neighborhood of Boston. One assailant bound the occupants' wrists and ankles with duct tape, and one or both of them searched the apartment for drugs and money. One of the assailants then shot Young six times in the head and Chow once in the head, killing them both. He also attempted to shoot Li but apparently ran out of ammunition. Terrence Brown was linked to the scene by fingerprint evidence. He and Nathan Rivera were each indicted on two charges of murder in the first degree; armed assault with intent to murder; three charges of armed assault in a dwelling; armed robbery; three charges of home invasion; and unlawful possession of a firearm. Following a joint trial, a jury found each defendant guilty of murder in the first degree, based on multiple and differing theories,² two charges of armed assault in a dwelling; home invasion; ³ and unlawful possession of a firearm. Rivera was also found guilty of armed assault with intent to murder. Both defendants were acquitted of armed robbery.

The defendants raise numerous claims of error on appeal. Principally, Brown claims that his statement to police, admitting his involvement in the home invasion, was obtained in violation of art. 12 of the Massachusetts Declaration of Rights and Commonwealth v. Mavredakis, 430 Mass. 848, 725 N.E.2d 169 (2000), and that the redacted version of his statement that was introduced at trial violated his constitutional right to present his defense of withdrawal, and accordingly, severance was required. Rivera claims that his right to a fair trial was violated by the repeated denial of his motions to sever his trial from that of Brown, and relatedly, that introduction of Brown's redacted statement violated his confrontation rights under Bruton v. United States, 391 U.S. 123, 137, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

We conclude that no such errors occurred. We reject the defendants' remaining challenges, and we decline to exercise our extraordinary power under G.L. c. 278, § 33E, to set aside the defendants' murder convictions and order a new trial. We therefore affirm the judgments.

1. Facts. We recite the facts the jury could have found, reserving certain details for discussion in conjunction with the issues raised. The defendants and Young grew up in the Castle Square housing development in the South End section of Boston. Rivera and Young attended the same elementary school in the South End for about three years, and were a grade apart. Chow also had friends from Castle Square and shared several mutual acquaintances with the defendants. One such acquaintance, Jimmy Lau, saw Rivera approximately once a week during the summer of 2001. Sometime in 2001, Lau had a conflict with Chow over a drug transaction. Both were drug dealers.

In August, 2001, Young and her roommate, Janet Lee, were living in a two-bedroom apartment at 40 Parker Hill Avenue. Lee shared the larger bedroom with her boy friend, Li, and Young used the smaller bedroom. Chow was temporarily staying at the apartment and was sleeping on an air mattress in the living room. Chow kept his belongings in black duffel bags that he stored in Lee's bedroom and in the hall closet. Chow was selling “Ecstasy” and marijuana out of the apartment.

On the morning of the murders, Lee left for work at approximately 7:30 a.m. Young was taking the day off from work because it was her son's birthday, and was doing laundry before going to pick up her son. Li and Chow were asleep. Shortly before 11 a.m. Li woke up and heard Young talking on the telephone with her son.

Around 11 a.m. Young answered a knock at the apartment door. Two men entered the apartment, pushing Young to the floor. Both men were wearing “dust masks,” and both were armed. Li emerged from his bedroom and saw a “chubbier” Hispanic man standing over Young and a skinnier African–American man on top of Chow, who was lying on his air mattress. Li then attempted to locate a weapon in his bedroom to defend himself, but returned to the living room unarmed after hearing one of the men say, “Go get the guy in the room.” At this point, the African–American man pointed a black, revolver-like firearm at Li and ordered him to lie down on the air mattress next to Chow.

The African–American used duct tape to bind Young's ankles and bind her wrists behind her back. He similarly bound Li and Chow. As he was being bound, Li heard Young struggling with her assailant in the kitchen and heard the coffeepot break. While this was occurring, Li heard Young say, “Nathan, is that you? Why are you doing this? We grew up together.” After Young spoke, the assailants told her, “Shut up,” and the Hispanic man said “Bone, take care of this.” ⁴

The assailants moved Young to the bed in Lee's bedroom. One or both of them searched the bedroom for drugs and money. Having found nothing, the Hispanic man returned to the living room and asked Chow, “Where's the drugs and money?,” to which Chow replied, “There is no more.”

Five to ten seconds later, Young was shot six times in the head. Before she was shot, a thin black sweater was placed over her head. A few seconds later, Li felt a towel placed over his head. Chow, who was next to Li on the air mattress, was then shot in the head. Li turned to the right and saw the Hispanic man pointing a silver, semiautomatic handgun at his head. The man pulled the trigger two or three times, but Li heard only a clicking sound, suggesting the gun was out of ammunition. At this point, Li heard the sounds of someone leaving the apartment, but could not tell if it was one assailant or both. Li freed himself from the duct tape, grabbed a sword that was on display in the living room, and went outside to chase after the assailants. He saw the men walking up the street but decided not to pursue them. He returned to the apartment and telephoned 911.

Young died instantly. Chow was transported to a hospital, where he was pronounced dead. Li was taken to the Boston police station area B–2, where he was interviewed by Sergeant Detective Daniel J. Coleman, who was in charge of the homicide investigation. Li provided descriptions of the assailants and what had occurred, including Young's use of the name “Nathan.”

The police recovered a number of items of evidence from the apartment, including a used roll of duct tape, seven spent .380 caliber shell casings, over $14,000 in cash, 180 Ecstasy tablets, and small amounts of other drugs. All seven casings were fired from the same gun. On the duct tape, the police found a print from Brown's right thumb.

a. Brown's arrest and statement. Sergeant Detective Coleman testified at trial that as a result of the fingerprint identification, Brown, an African–American, was arrested on August 14, 2001, and brought to the homicide unit at Boston police headquarters. At approximately 2:35 p.m. after reviewing and signing a Miranda warning form, Brown agreed to speak with Coleman and Detective Robert Kenney and an unrecorded interview began. At first, Brown repeatedly denied that he had ever been to 40 Parker Hill Avenue or had any knowledge of that address.

About fifty minutes into the interview, Coleman revealed to Brown that the police had recovered his fingerprint from a roll of duct tape found at the scene. Coleman demonstrated to Brown how the location of his print within the roll indicated that he must have been one of the last people to touch the roll, after it had been used to bind the victims. Faced with this evidence, Brown admitted some involvement in the crime. He told Coleman that on August 10, he had gone to a location in the Dorchester section of Boston, then to a hardware store in the South End, and then directly to 40 Parker Hill Avenue. At 40 Parker Hill Avenue, an Asian girl named Karen whom he knew from Castle Square had opened the door. He admitted taping all three occupants, but denied wearing a mask. He claimed that after he taped the victims, he left and went outside to a vehicle. He claimed that all three occupants were alive when he left the apartment and he denied killing anyone.⁵

At approximately 3:55 p.m., Coleman was informed that Attorney Sydney Milgram had called the police station to notify the police that he represented Brown. The interview ceased and Brown was informed of Attorney Milgram's telephone call. Brown agreed to proceed with the interview without Milgram's presence.⁶ At 4:05 p.m. Coleman began to tape record the interview, going back over the story that Brown had told the detectives during the unrecorded discussion concerning his involvement in the crime. A redacted version of that tape recorded statement (omitting any reference to Rivera) was played for the jury at trial.

b. Rivera's arrest and alibi. Rivera was arrested on August 16, 2001. A recorded statement he made to police, in which he stated that he was friends with Brown, but denied any involvement in the crime, was admitted in evidence. In his statement, Rivera claimed he was watching his two younger sisters at the time of the murders. At trial, Sharon Jones, a coworker of Rivera's mother, Awilda Torres, testified that Torres had brought her two daughters to work with her on August 10, 2001, and that Rivera had come by the office to pick them up around 1 p.m. (approximately two hours after the murders). Rivera's girl friend, Madelyn O'Neal, on the other hand, testified that she...