Commonwealth v. Santos

• Decision Date: 27 August 2012
• Docket Number: SJC–10539.
• Citation: 463 Mass. 273,974 N.E.2d 1
• Parties: COMMONWEALTH v. William SANTOS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

463 Mass. 273

974 N.E.2d 1

COMMONWEALTH

v.William SANTOS.

SJC–10539.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued April 8, 2011.

Decided Aug. 27, 2012.

Leslie W. O'Brien for the defendant.

Robert J. Bender, Assistant District Attorney (Elizabeth A. Dunigan, Assistant District Attorney, with him) for the Commonwealth.

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

DUFFLY, J.

A Superior Court jury convicted the defendant of armed robbery and murder in the first degree on a theory of felony-murder in the shooting death of Luis Daniel Rodriguez. On appeal, the defendant claims error in the admission in evidence of statements he made to police following his arrest on unrelated charges; statements made by his codefendant admitted through testimony of the codefendant's sister; grand jury testimony by the codefendant's sister, admitted substantively; and testimony of a witness who saw the defendant near the scene of the shooting that he had served time in prison with the defendant. The defendant contends also that we should exercise our power under G.L. c. 278, § 33E, to grant him a new trial. Because errors in the admission of certain evidence created a substantial likelihood of a miscarriage of justice, we reverse the defendant's convictions and remand the case for a new trial.

Background. We recite the facts the jury could have found, reserving some details for later discussion.

1. The shooting. On July 26, 2005, the victim was shot in the chest across the street from the Pawtucket Pharmacy (pharmacy) in Lowell, ran through traffic with a group of other young men, and collapsed in a pool of blood in the doorway to the pharmacy. The shooting took place at approximately 5:36 P.M. at one of the busiest intersections in Lowell. Many witnesses, including drivers waiting for the traffic signals to change, pedestrians, and residents of nearby apartments, described the event to police, but none was able to identify any of the participants. All of the witnesses reported that the participants were young, Hispanic males.

The evidence concerning the planning of the robbery by the defendant and the codefendant, Jose Luis Claudio Benitez (Claudio),¹ and the flight from the scene of the shooting, was introduced through the Commonwealth's key witness, Jesus Antonio Marquez,² the driver of the getaway vehicle. The defendant and Claudio knew the victim and knew that he was a heroin dealer; the defendant had purchased heroin from the victim on a number of occasions. On July 26, 2005, Claudio telephoned the victim's cellular telephone number and arranged to purchase eighty dollars' worth of heroin. The transaction was to take place at a grocery store near the victim's home. Claudio drove the defendant and Marquez to the planned meeting location in a white Honda automobile owned by Marquez.³

When they arrived at the grocery store, the victim was not present; Claudio telephoned the victim again and arranged to meet in the parking lot of a Red Cross building next door to the victim's apartment building on Pawtucket Street. Claudio then suggested that they rob the victim, and the defendant, saying that the victim owed him money, agreed to participate in the robbery. En route, with Marquez driving, Claudio handed the defendant a pistol, saying, “Don't go shooting [the victim], you know; just rob him. Don't go shooting him if he don't got nothing.” The defendant replied, “I'm going to get my money, but I ain't stupid. I'm not going to shoot him.” Marquez parked on School Street a few houses from the intersection with Pawtucket Street; as the defendant and Claudio were heading down School Street, Claudio told Marquez not to leave. Shortly thereafter, Marquez heard a gunshot.

Approximately six minutes after Marquez heard the gunshot, he saw the defendant running toward him up School Street from the direction of Pawtucket Street, turned the vehicle around, and picked up the defendant. The defendant urged Marquez to leave, but Marquez refused. Claudio then ran around the corner and was able to get into the back seat of the vehicle. He turned to the defendant and asked, “Why did you shoot him, you know? I told you not to shoot him. I told you not to smoke him. Why did you shoot him?”

Claudio directed Marquez to drive to the apartment of Claudio's sister, Olga Gonzalez, overriding the defendant's request to be driven to the apartment where he was staying. Marquez drove to Gonzalez's apartment and parked in the back. Because Gonzalez did not know Marquez or the defendant, she would not permit them to enter her apartment; they remained in back of the apartment building while Claudio went inside the apartment. Claudio asked for a towel and a change of clothes; he told Gonzalez that “[h]e told him not to do it” and that “the other guy shot someone” even though Claudio had told him not to do so.

Claudio made several calls from Gonzalez's home telephone. Gonzalez then went outside with Claudio for a few minutes. The defendant offered Gonzalez a distinctive gold necklace with a jeweled crucifix; saying she “had a man,” Gonzalez refused to accept it.⁴ While Marquez and the defendant waited in the back yard, Claudio walked down the street to talk to one of Gonzalez's neighbors, Migdalia Fontanez, a good friend and former girl friend of Claudio and the godmother of Gonzalez's daughter. The defendant and Marquez left together; Marquez drove the defendant to the address he requested, near the home of someone named “Humble,” whom Marquez identified as a friend of Claudio and an acquaintance of Marquez.

A tall, light-skinned Puerto Rican man known as “T,” and later identified as Thomas Louis Clermont, arrived in a small, white Honda Civic automobile. Marquez returned from dropping off the defendant to pick up Claudio, and Claudio, Marquez, and Clermont talked for a while. Clermont told Claudio, “It's my biscuit. I'll take it,” and Claudio handed him a gun wrapped in a towel. Marquez testified that Claudio decided not to accept a ride with Marquez and that Clermont and Claudio left together in Clermont's white vehicle while Marquez drove to his girl friend's house. Fontanez testified that Claudio and Clermont drove off together in the small white vehicle that Clermont had been driving. Clermont was called to testify at trial. Outside the presence of the jury, he asserted his privilege against self-incrimination under the Fifth Amendment to the United States Constitution.

2. The investigation. At the time of the shooting, Francis Kelly, Sr., an off-duty Chelmsford police officer, and his son, Francis Kelly, Jr., an off-duty Lowell fire fighter, were in a pickup truck on Pawtucket Street, stopped for a traffic light a few vehicles away from the intersection with School Street. They saw four young, Hispanic males ⁵ run from the parking lot of the Red Cross building, cross the street through heavy traffic on Pawtucket Street, and head toward School Street. At the entrance to the pharmacy, one of the men stumbled and fell. Two stopped and appeared to be trying to help the man who had fallen, then continued running up School Street; the fourth stayed over the man for a few seconds, then ran up School Street as well.⁶ The Kellys pulled into the pharmacy parking lot and went to assist the victim. He was lying face down, moaning but unresponsive. The Kellys telephoned police, then turned the victim over, and saw that he had been shot. Emergency medical personnel arrived immediately thereafter and transported the victim to a hospital, where he died as a result of a single gunshot wound to the chest.

Shortly before the shooting, the victim, who was a frequent customer, had purchased a bottle of soda at the pharmacy. He was wearing a distinctive jeweled crucifix on a gold chain that he was known to wear habitually. Police found sandals and several packages of heroin in the parking lot of the Red Cross building.⁷ A blood trail led from these items to the doorway of the pharmacy.

Two pedestrians (twelve and fourteen year old siblings) reported seeing a darker-skinned Hispanic male running toward them, up the hill on School Street in the direction leading away from Pawtucket Street. Another witness, who was in a car waiting at the traffic light on School Street, saw four males, one African–American and the others Caucasian or Hispanic, running along Pawtucket Street away from the pharmacy. A witness who was unloading groceries from a cab saw a “group” of “like four or five boys” she described as “light skinned” in the parking lot of the Red Cross building; they were standing in the lot talking, then started heading up the street when the witness heard a gunshot and saw the victim crossing the street toward the pharmacy. One of the boys snatched something from the victim, the boys “split up,” and they all “started running.” A resident of School Street, who was driving past her house, saw an older white automobile, which she identified as a Honda, parked in her driveway. The vehicle had one male occupant, wearing a blue and white “do-rag”; he turned and looked directly at her. The resident continued around the block and parked in back of her house. When she entered her house, the white vehicle was no longer in her driveway. The resident was unable to identify the driver from a photographic array. Another witness, driving on School Street, saw two Hispanic males, in their “late teens or early twenties,” run around the corner from Pawtucket Street. One, wearing white, was running ahead of the other, and got into a white Honda that was pulling out of a driveway and partially blocking traffic. The vehicle started driving up School Street. The second man, wearing a numbered sports jersey, was holding a dark object that the witness thought might have been a gun tucked in his waistband; because the traffic light changed, the witness did not see whether the second individual reached the Honda.

Police investigated the telephone numbers...