Commonwealth v. Spencer

• Decision Date: 02 May 2013
• Docket Number: SJC–11195.
• Parties: COMMONWEALTH v. Shane M. SPENCER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

465 Mass. 32

987 N.E.2d 205

COMMONWEALTH

v.Shane M. SPENCER.

SJC–11195.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Nov. 8, 2012.

Decided May 2, 2013.

Stephen J. Carley, Assistant District Attorney, for the Commonwealth.

Charles K. Stephenson, South Hadley (Joan M. Fund with him), for the defendant.

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

LENK, J.

The defendant has been indicted for murder in the first degree, and for unlawful possession of a firearm and of ammunition as an armed career criminal. The Commonwealth seeks to introduce at his forthcoming trial the defendant's three recorded statements to police, made on July 29, July 30, and August 3, 2006, as well as eight recorded telephone calls that the defendant made from the Worcester County house of correction between August 2 and August 14, 2006. Shortly before trial was scheduled to begin, in conjunction with a number of other motions in limine, the trial judge considered the defendant's two motions in limine to exclude his statements to police and the recorded calls.

Following two hearings on those motions, the judge ordered that portions of the statements, largely from the interviews on July 29 and 30, 2006, be excluded, because they constituted unequivocal denials of police accusations, were not relevant to any matter in the case, or were substantially more prejudicial than probative. The judge concluded that the statements in six of the eight telephone calls were not relevant, were more prejudicial than probative, or should be introduced at trial, if at all, through the direct testimony of the person purportedly making the statement rather than through hearsay reports by others. The judge determined also that several of the telephone calls consisted primarily of statements by others that the defendant did not adopt. He allowed admission of two of the calls as, inferentially, efforts by the defendant to have someone dispose of the murder weapon.

The exclusion of portions of the defendant's statements to police, and of the six jailhouse telephone calls, is the subject of this appeal. Discerning no palpable error in the judge's rulings, we affirm.

1. Background and prior proceedings. We summarize the evidence that the Commonwealth has stated it expects to introduce at trial. Shortly after 4 a.m. on Saturday, July 29, 2006, Luis Arocho–Ortiz was shot in the chest and killed while he was standing on the sidewalk outside a friend's house on Southgate Street in Worcester. A gray Toyota Corolla drove past slowly, and a back seat passenger began shooting into the crowd of people gathered there for a party, hitting Arocho–Ortiz. The Commonwealth's theory is that the defendant was the passenger, and that his intended victim was Francisco “Tito” Rivera (Tito),¹ who lived in the house where the crowd was gathered. The other occupants of the Corolla were the defendant's friend Jonathan Monroy, who was driving; the defendant's friend Francisco “Cisco” Rivas (Cisco); and Cisco's girl friend, Heidi O'Brien. The Commonwealth intends to establish at trial that the defendant had become convinced that Tito, and not the defendant, was the father of the defendant's girl friend's child, and that, in the weeks before the shooting, the defendant had engaged in a series of increasingly violent confrontations with Tito.

Police began looking for the defendant shortly after the shooting, when they tracked the Corolla to a house on Gates Street, where they found Cisco, Monroy, and O'Brien.² The defendant was arrested at approximately noon on July 29, when police located him in a house near his mother's house on Mott Street. ³ Police also were directed to a gun found by a downstairs neighbor in a trash container in the backyard outside the defendant's sister's house. At the police station, two cellular telephones were seized from the defendant; he was given Miranda warnings and agreed to speak with police. When the defendant asked why he had been arrested, officers responded that it was for an assault and battery by means of a dangerous weapon. Police told the defendant that they were investigating an incident on July 26, when, according to Tito, he had been standing near the intersection of Grand and Cheney Streets in Worcester. The defendant had appeared across the street, called out his name, and then pulled out a gun and fired four shots at him. Tito ducked behind a car, escaping injury, and heard a car leave the scene.

The interview on July 29 was videotaped and lasted approximately forty-five minutes. It focused initially on the alleged shooting on July 26. The interview then turned to the defendant's activities on the night of Friday, July 28, and the early morning of Saturday, July 29. The defendant stated that he had spent the evening with a number of friends and relatives, including his brother and sister, at a night club, before returning to continue “partying” with friends, relatives, and neighbors outside his mother's house. During that interview, the defendant said he was familiar with “Francisco Rivera” but did not know him well. He denied any argument with “Francisco Rivera,” and denied any suspicion that Jenesca had been “cheating” on him with “Francisco” or with any other man.⁴

Police interviewed the defendant again at approximately 7:30 p.m. on the evening of Sunday, July 30, for about forty-five minutes. During this videotaped interview, detectives informed the defendant that they were also investigating a shooting on Southgate Street that had taken place on Friday night. The interview focused initially on the defendant's activities on the night of that shooting. The defendant recited a somewhat different account of his movement between clubs and his subsequent all-night “partying” with friends and relatives outside his mother's house, and of how well he knew Tito. When police suggested that they were being told by others the defendant had been involved in the drive-by shooting, the defendant denied ever having been on Southgate Street or knowing where Southgate Street was, and denied knowing anyone named “Francisco Rivera.” He said anyone who claimed he had been involved with the shooting must be lying. When police asked him why he had said during the earlier interview that he knew a “Francisco Rivera,” the defendant explained that he thought police were referring to his friend Francisco Rivas, known to him as “Cisco.” ⁵ When shown a photograph of Francisco Rivera, the defendant identified the photograph as being the person he knew as “Tito,” ⁶ but denied knowing Tito's formal name,⁷ denied any dispute with Tito, and denied suspecting Tito of involvement with Jenesca.

A few days after the defendant was taken to the Worcester County house of correction, he requested to speak with police. On August 3, Worcester police went to the house of correction to interview him. After being given Miranda warnings, and waiving his Miranda rights, the defendant made an audiorecorded statement in which he recited a similar, but varying, account of going to clubs and “partying” with friends and relatives on the night of July 28–29. Then, for the first time, the defendant informed police that Cisco, who was a member of the Vice Lords gang, had been planning to kill “Kelvin,” a member of the South Side gang, who had just been released from jail.⁸ Cisco had a “beef” with Kelvin over a girl they had both dated. The defendant said that Cisco told him, as Cisco was preparing to drive to Southgate Street with several others to “get in some trouble” with South Side and to “kill” Kelvin, that, if he could not find Kelvin, he would “get anybody ... close” to Kelvin. Earlier in the evening, Cisco had shown the defendant a black Ruger handgun, which shot “little bullets,” that Cisco had been carrying all day; this description matched the gun police located outside the defendant's sister's house.

Between August 2 and August 14, the defendant made eight recorded telephone calls from the Worcester County house of correction that the Commonwealth seeks to introduce in evidence. We set forth a synopsis of those conversations, adopting the numbering convention used by the parties.

Call 5R: The defendant telephones Jenesca and has her call Cisco. He then tells Jenesca to ask Cisco why Cisco is “telling everyone stupid shit” when he should be “holding me down.” Cisco confirms that he will “hold [the defendant] down.”

Call 10R: The defendant tells Jenesca that he needs her to do something for him and that he cannot “even say [it]” over the telephone. He tells her to take something green from the back hallway and give it to someone whose name is not discernible.

Call 13R: The defendant reads Jenesca the police report summarizing Tito's allegations to police about the assault on July 26. He notes that there is no ballistic evidence, and Jenesca says that the defendant will be fine because he knows he had nothing to do with that assault. The defendant suggests that he intends to post copies of the report in various restaurants and businesses around town so that people will know Tito is “a snitch.” Jenesca supports the plan. Cisco then joins the conversation in a conference call; he says that he is holding the defendant down and that all kinds of rumors are circulating. The defendant says that there is “money on [his] head.” Cisco says the defendant should not worry about it because the defendant knows he was at his baby's mother's house at the time of the shooting.

Call 14R: The defendant speaks with Cisco a few minutes later, again in a conference call with Jenesca. The defendant says that there is a $50,000 price on his head, but Cisco thereafter dominates the conversation, saying that police questioned him and he told them nothing, and then detailing the alibi he gave police concerning his own whereabouts that night.⁹ Cisco says he was talking with the victim's brother and others, who came to his house trying to figure out who was...