Commonwealth v. Rosario

• Decision Date: 19 July 2011
• Docket Number: SJC–08618.
• Parties: COMMONWEALTHv.Jose ROSARIO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

460 Mass. 181

950 N.E.2d 407

COMMONWEALTH

v.Jose ROSARIO.

SJC–08618.

Supreme Judicial Court of Massachusetts, Hampden.

Argued March 11, 2011.Decided July 19, 2011.

Joseph A. Hanofee, Northampton, for the defendant.Katherine E. McMahon, Assistant District Attorney, for the Commonwealth.

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

CORDY, J.

In the early morning hours of June 4, 1999, Mario Cordova was shot in front of 5 Lionel Benoit Road in Springfield. He died on June 9. Five men were indicted as joint venturers in the murder. Three of the codefendants—Alberto Montanez; Felix Padilla, Jr.; and Adrian Rivera—pleaded guilty to manslaughter. Montanez and Rivera entered into cooperation agreements with the Commonwealth and testified at the separate trials of Jason Rivas (alleged to have been the shooter) and the defendant, Jose Rosario. On May 26, 2000, a jury found Rivas guilty of murder in the first degree. In 2007, Rivas was granted a new trial and subsequently pleaded guilty to manslaughter.

On September 28, 2000, a jury found the defendant guilty of murder in the first degree, and he was sentenced to a life term in State prison.¹ He filed a notice of appeal on October 27, 2000. A motion for a new trial was filed in this court on October 22, 2001; we remanded it to the Superior Court, where it was entered on October 24, 2001. The trial judge held an evidentiary hearing in November, 2002, and denied the defendant's motion for a new trial on May 7, 2010.² His appeal from that denial has been consolidated with his direct appeal which is now before us.

On appeal, the defendant contends that the judge erred by (1) failing effectively to instruct the jury that only an intent to kill can support a conviction of premeditated murder in the first degree; (2) allowing the prosecutor to elicit testimony from cooperating witnesses, Rivera and Montanez, that they were testifying “truthfully” pursuant to their cooperation agreements; (3) allowing a cooperating witness, Rivera, to testify that members of the Latin Kings gang kill cooperating witnesses in prison; and (4) refusing to discharge a juror who reported being followed by a member of the defendant's family. He also contends that the judge abused her discretion when she denied his motion for a new trial where new evidence impeaching the credibility of Rivera was presented, and where evidence of the existence of an allegedly undisclosed cooperation agreement between the Commonwealth and another witness, Luis Rodriguez, was discovered. Finally, he asks us to exercise our authority under G.L. c. 278, § 33E, to reduce his murder conviction to involuntary manslaughter. For the reasons that follow, we affirm the convictions, decline to grant relief under G.L. c. 278, § 33E, and affirm the denial of the motion for a new trial.

1. Evidence at trial. There was evidence at trial to the following effect. The defendant was a “regional officer” of the Latin Kings street gang. Prior to the night of the shooting, he had had three encounters with the victim and his friend, Johnel Olmo, all stemming from the defendant's claim that they had stolen money or drugs from his apartment during a party. The first encounter occurred when the defendant pointed a shotgun at Olmo's head while the victim was present and said that “there was going to be trouble” and that they “should pay the money.” The second encounter occurred at night when Olmo and the victim observed two automobiles (one belonging to the defendant), with their headlights off, pull into a driveway. Three or four people got out of the cars; one had a shotgun and another had a baseball bat. Olmo and the victim ran to Olmo's girl friend's house and telephoned the police. The defendant was gone by the time the police arrived. The third encounter occurred when the defendant approached Olmo while he and the victim were at a bar, asked for his money, and challenged Olmo to a fight.

On the evening of June 3, 1999, Jenette Vasquez was hosting Luis Rodriguez and several other friends for dinner and a movie in her first-floor apartment at 5 Lionel Benoit Road. Vasquez also had invited the victim and Olmo to the gathering. At some point before the victim and Olmo arrived, Vasquez's upstairs neighbor and the defendant (who was a friend of the neighbor) stopped by Vasquez's apartment. While the defendant was present, Vasquez made a telephone call to Olmo to find out when he would arrive. Olmo asked Vasquez to tell him who was present at the apartment; Olmo then asked to speak to the defendant. The defendant told Olmo, “I'm your worst nightmare.” Shortly after that telephone call, the defendant and the neighbor left Vasquez's apartment. Olmo and the victim arrived a short time later to watch the movie.

Meanwhile, Montanez, Padilla, Rivas, and Rivera were together at Rivera's house. All four were members of the Latin Kings gang and subordinate in rank to the defendant.³ Montanez testified that he could be subject to “a violation or a termination” if he did not comply with an order from a higher ranking member. Montanez and Rivera testified that the defendant called Padilla sometime before midnight, instructing Padilla to pick him up on Worthington Street in Springfield and bring the handgun that was kept in Rivera's home. When the call ended, Padilla told Rivas to look for the weapon upstairs. Rivas complied and returned with a black and brown gun and the four men left Rivera's house in Padilla's automobile. Rivas handed the gun to Montanez.

Padilla picked up the defendant on Worthington Street. The defendant mentioned “a beef he had” with Olmo and the victim; Rivas said that he also had “a beef” with them. The defendant told Padilla to drive to 5 Lionel Benoit Road because “he had a problem with a kid and ... thought that the kid was still there and ... didn't want to go by himself.” When they arrived, the defendant, Montanez and Rivas got out of the vehicle. The defendant instructed Montanez to give the gun to Rivas and told them both to wait “between some buildings,” which they did. The defendant got back in the car and Padilla drove further down the street with the vehicle's headlights off.

The victim, Rodriguez, Olmo, and two other guests left Vasquez's apartment after the movie ended. Olmo, however, returned to Vasquez's apartment to use the bathroom. The victim and the others waited for Olmo near the entrance of the building; the victim opened the door and looked down the road.

Montanez testified that he and Rivas were standing between the buildings when he saw Padilla make a “U-turn” with his automobile on Lionel Benoit Road. The defendant got out of the vehicle, ran to them between the buildings, looked at the victim standing in the doorway, pointed, and said, “Go, go, go.” The defendant touched Rivas on the back, and Rivas fired three shots at the victim from approximately twenty feet away. The first shot hit the victim in the head and he fell to the ground. The second shot hit a drain pipe nearby, and the path of the third shot was unknown.⁴ The defendant, Montanez, and Rivas returned to Padilla's automobile, and the defendant ordered Padilla to drive away. Padilla drove off, and the defendant said, “He got one of them.”

Vasquez telephoned 911. The victim was transported to Baystate Medical Center, where he died six days later from a gunshot wound to the head.

The next day at work, the defendant appeared tired and nervous and told a coworker, “I snuffed somebody.” The defendant received a telephone call at work and was heard to say, “For real?” The defendant then told his coworker, “Well, you won't see me no more, Dog.” At some point after the shooting, the defendant telephoned Olmo and told him, “Latin King love,” and that he would “get [him] later.”

On June 10, 1999, Rivera was escorted to the Springfield police station by two high ranking members of the Latin Kings—Ivan Serrano and Ivan Pena—and volunteered a written statement that Padilla shot the victim and that he acted alone. Padilla was in police custody at the time, and Rivera testified that he made the statement because Serrano told him Padilla was “snitching.” Serrano told Rivera to “blame it on [Padilla] because he was blaming us.” Rivera testified at trial that the statement he made to police at that time was a lie.

Montanez was arrested on June 18, 1999, on unrelated drug charges and subsequently made statements to police on August 25 and August 27, 1999, about the June 3 shooting. Montanez also testified that his first statement was not completely truthful. Both Rivera and Montanez asserted at the defendant's trial that, although they lied to police, their testimony as to the defendant's involvement in the murder was the truth.

2. Jury instructions. The judge instructed the jury that in order to convict the defendant of premeditated murder in the first degree, the Commonwealth must prove beyond a reasonable doubt that “the killing was committed with malice.” She further instructed that malice “means an intent to cause death,” and that the “Commonwealth must prove that the defendant actually intended to cause the death of the deceased.” The defendant asserts that this instruction, although correct, “lost effect” when she immediately followed it with an instruction that “[a]s a general rule” the intentional use of a dangerous weapon on another permits an inference of malice, thereby, he argues, permitting the jury to infer first prong malice from the use of a handgun even if there was no specific intent to kill the victim.⁵ Relatedly, the defendant contends that it was error for the judge not to provide a so-called Jiles instruction, emphasizing that only malice—that is, malice defined as a specific intent to kill—can support a conviction of murder in the first degree. See Commonwealth v. Jiles, 428 Mass. 66, 71–72, 698 N.E.2d 10 (1998) ( Jiles ).

The Commonwealth argues, as a threshold matter, that the defendant did not preserve...