Commonwealth v. Sosa

• Decision Date: 18 March 2011
• Docket Number: No. 10–P–484.,10–P–484.
• Citation: 943 N.E.2d 970,79 Mass.App.Ct. 106
• Parties: COMMONWEALTHv.Ivan Lorenzo SOSA.
• Court: Appeals Court of Massachusetts

79 Mass.App.Ct. 106

943 N.E.2d 970

COMMONWEALTH

v.Ivan Lorenzo SOSA.

No. 10–P–484.

Appeals Court of Massachusetts, Suffolk.

Argued Dec. 7, 2010.Decided March 18, 2011.

David M. Skeels, Cambridge, Committee for Public Counsel Services, for the defendant.Kris C. Foster, Assistant District Attorney (Ian Polumbaum, Assistant District Attorney, with her) for the Commonwealth.Present: RAPOZA, C.J., MEADE, & MILKEY, JJ.MEADE, J.

The defendant was indicted for murder in the second degree of Carlos Borrero, in violation of G.L. c. 265, § 1. After a jury trial, he was convicted of voluntary manslaughter. On appeal, he claims that the prosecutor's cross-examination of him violated Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) ( Doyle ), that the judge erred by refusing to instruct the jury about the probative value of a witness's testimony, and that the jury instruction on self-defense was deficient on the subject of “duty to retreat.” We affirm.

1. Background. Based on the evidence presented at trial, the jury were entitled to find the following. The victim and the defendant had been friends for years, and one-time roommates. They worked together at Turner Fisheries in the Westin Copley Hotel, the victim as a bartender and the defendant as a line cook. A new bartender, Anna Davis, started working at the restaurant, and the defendant took a romantic interest in her. When the victim and Davis became friends and the defendant's romantic interest went unrequited, the defendant grew jealous of the victim. As time went by, the defendant grew increasingly angry and resentful of the victim. The defendant believed that the victim had been talking behind his back and that the victim might have said something to Davis to make her not want to date the defendant.

The defendant told Frank Neugebauer, the head chef, about his problems with the victim. The defendant was “quite aggravated” when he told Neugebauer, “I can't take it anymore,” and, “One day I[am] going to get him.” Neugebauer urged the defendant to see him if he had any problems with the victim.

On the day of the victim's death, the defendant's anger was boiling over. He was neglecting his kitchen duties and acting aggressively toward other restaurant staff. At some point that afternoon, the defendant told a coworker to tell the victim to “[s]top talking shit about me,” and to tell him, “If you have any balls, come talk to me face to face.” When the victim arrived at work, the coworker informed him that the defendant was mad at him. The victim was “not extremely upset about it,” but replied, “Oh, really? He doesn't like it, but it's okay for him to talk behind my back.”

Later that afternoon, the victim came into the kitchen and argued with the defendant in Spanish. The defendant left his work station, with a long kitchen knife in hand. Watching this unfold, Hemid Bouez, a line cook, yelled, “Stop, Ivan. Stop, Ivan,” but the defendant continued approaching the victim, who was backing up toward the door. Bouez hurried over and saw the victim lying on his back with the defendant over him, stabbing him repeatedly. Bouez grabbed the defendant and tried to pull away his knife-wielding hand. Another line cook rushed over, saw Bouez trying to pry the defendant off the victim, cried out, “Stop, Ivan. Stop, Ivan,” and pried the knife out of the defendant's hand. The victim was lying on the floor with his eyes open, and the chest area of his uniform was bloodied. He was gasping for breath and asked for someone to call 911. He died shortly after.

The defendant had stabbed the victim four times, with the fatal wound being to the right side of his chest. The knife went four to six inches deep into his chest, fracturing his fifth rib and some cartilage on his sixth rib, and going through a lung, the superior vena cava, and, finally, the aorta. He also suffered a cut to his right ring finger, consistent with trying to defend himself. The second stab wound was to the back of his right thigh, consistent with being stabbed with his knees drawn up to his chest. The third wound was to the front of the right thigh near his hip, and the fourth one was on the outside of his right arm.

Once the defendant was pried off the victim, he stood motionless, white, and in “shock,” not responding to Bouez's frantic question, “What the fuck ... did [you do]?” He had blood covering the front of his shirt. He pulled out his cellular telephone, dialed, gave it to Bouez, and said, “Call my mother.”

Moments later, security arrived and began to perform cardiopulmonary resuscitation on the victim. Neugebauer had been summoned into the kitchen, where he took the defendant aside and asked him why he had attacked the victim. The defendant said that the victim “came over. He irritated [me],” and that the victim asked him, “You want to do something about it?” The defendant replied, “Let's do it.” The defendant told Neugebauer, “They lock me away for a long time now.” When the defendant asked if he could have a cigarette, Neugebauer went with him to the loading dock. While there, the defendant told Neugebauer, “It was meant to be,” and “I will be gone for a long time.”

When the police arrived, Officer Paul DeLeo, Jr., noticed that the defendant was all white but calm; his chef's uniform had fresh blood on it. He had a visible injury to his upper right cheek, but no other injuries. The defendant refused medical treatment. The defendant was arrested at the scene.

2. The defense. According to the defendant, he was working in the kitchen when the victim came in “yelling and screaming.” The victim was loud and angry, and started talking about a woman named Angela Hanks, who used to work at the restaurant. He told the defendant, “Forget about her. She doesn't love you. It's me the one she wants. It's me the one she wants.” The victim started looking around the kitchen; the defendant thought he was looking for something to throw at him. The defendant tried to calm the victim down and threatened to call Neugebauer. The victim reached for the defendant's knife, but the defendant grabbed it and put it by his side. The defendant “marched” past the line cooks, and the victim yelled, “He's got a knife. He's got a knife.” When the defendant got closer to the victim, the victim twice hit him on the head with a metal bowl. The defendant tried to take it away, and the victim threw the bowl at him. The victim then grabbed a knife from a work station and ran at the defendant, swinging the knife. Cornered against the wall, the defendant stabbed the victim in the chest, and they both fell to the ground.

On the ground, the fight continued and the victim bit the defendant's face. Bouez tried to pull the defendant off the victim, but the victim was biting his face. Bouez eventually got the defendant off the victim; the victim was “shaking.” The defendant knew the victim's condition was “bad,” and he had a busboy call 911.¹ 3. Discussion. a. The prosecutor's cross-examination. The defense proceeded on a theory of self-defense. In support of that defense, the defendant testified on direct examination that the victim twice hit him on the head with a metal bowl and ran toward the defendant swinging a knife. On cross-examination, the prosecutor asked whether he had told Neugebauer that the victim had attacked him with a bowl and a knife, to which the defendant replied that he had not. The prosecutor then asked, “In fact, you never told anybody that?” The defendant again replied that he had not.

At sidebar, the defendant objected and moved for a mistrial based on his claim that the prosecutor's question unfairly commented on the defendant's right to remain silent. The prosecutor explained that his purpose was to emphasize that the defendant had not told his coworkers about the victim's attack,² and not to suggest that he passed up an opportunity to offer this exculpatory explanation to the police. Because the prosecutor did not intend to offer in evidence the statement the defendant made to Officer Richard Moriarty, the prosecutor, at the judge's request, clarified through the defendant that he had not told his coworker about the bowl and knife. The judge denied the motion for a mistrial and noted the defendant's objection.

The defendant claims that the prosecutor's cross-examination ran afoul of the proscription against the use of a defendant's post-Miranda silence to impeach him. We disagree. In Doyle v. Ohio, 426 U.S. at 618, 96 S.Ct. 2240, the United States Supreme Court held that the due process clause of the Fourteenth Amendment to the United States Constitution prohibits impeachment on the basis of a defendant's silence following Miranda warnings.³ The Court held that such impeachment was fundamentally unfair because Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him. Ibid.

Here, as clarified by the prosecutor, the defendant failed to mention the victim's bowl and knife attack to his coworkers when he was asked about the stabbing. This omission or silence occurred prior to his arrest and prior to his being advised of the Miranda warnings. The due process prohibition in Doyle neither contemplates nor extends to impeachment of a defendant with his pre-Miranda silence. Jenkins v. Anderson, 447 U.S. 231, 240, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980).⁴ Because no governmental action induced the defendant to remain silent before his arrest, the fundamental unfairness present in Doyle is absent here. Jenkins v. Anderson, supra. See Commonwealth v. Guy, 441 Mass. 96, 106, 803 N.E.2d 707 (2004) (“[t]he prohibition of Doyle applies only to police interrogations”); Commonwealth v. Nolin, 448 Mass. 207, 221, 859 N.E.2d 843 (2007) (the protection afforded by Doyle is not applicable where the defendant's statements are made to a friend and not in response to police interrogation); Commonwealth v. Thompson, 431...