Commonwealth v. Vargas, SJC–10075.

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation57 N.E.3d 920,475 Mass. 338
Docket NumberSJC–10075.
Decision Date30 August 2016

475 Mass. 338
57 N.E.3d 920



Supreme Judicial Court of Massachusetts, Hampden.

Argued March 11, 2016.
Decided Aug. 30, 2016.

57 N.E.3d 926

John M. Thompson for the defendant.

Katherine E. McMahon, Assistant District Attorney, for the Commonwealth.



475 Mass. 339

There is no dispute that on the night of September 23, 2004, the victim, Tremayne King, was killed by the defendant, Pablo Vargas. The defendant stabbed the victim eight times during an altercation at the residence of the victim's estranged wife, Yanira Rodriguez, who was the defendant's girl friend. At trial, the defendant sought to rebut the charge of murder in the first

475 Mass. 340

degree on the theory of self-defense, alleging that he fought and killed the victim because he feared for his life.

On May 24, 2006, a Hampden County jury convicted the defendant of murder in the first degree on a theory of extreme atrocity and cruelty, rejecting the Commonwealth's alternative theory of premeditation. In December, 2013, the defendant moved for a new trial, which was denied, as was his motion for reconsideration thereof.

On appeal from his conviction and from the denial of his motion for a new trial, the defendant claims that (1) his statement made during police questioning shortly after the altercation should have been suppressed; (2) the trial judge erred in excluding relevant so-called Adjutant evidence of the victim's history of violence,

57 N.E.3d 927

see Commonwealth v. Adjutant, 443 Mass. 649, 664, 824 N.E.2d 1 (2005) ; (3) the judge erred in admitting certain testimony concerning the defendant's statements made to a third party; (4) the judge erred in denying his request for an instruction on defense of another; (5) the judge's jury instructions on malice, self-defense, and voluntary manslaughter were erroneous and created a substantial likelihood of a miscarriage of justice because they allowed the jury to convict the defendant without considering mitigating circumstances; (6) a qualified interpreter should have been appointed to assist with the testimony of Rodriguez, who was a witness to the altercation; (7) his right to a public trial was violated when the court room was closed during jury selection; (8) trial counsel was ineffective; and (9) evidence that was newly discovered after trial warranted the granting of a new trial. The defendant also requests that we exercise our authority under G.L. c. 278, § 33E, to order a new trial or reduce the verdict of murder in the first degree to voluntary manslaughter.

Although our review of the record does not reveal any errors that would warrant a new trial, the circumstances of this case persuade us that a reduction of the defendant's conviction from murder in the first degree to voluntary manslaughter is more consonant with justice. We therefore vacate the defendant's conviction of murder in the first degree and his sentence, and we remand the case to the Superior Court for the entry of a verdict of guilty of voluntary manslaughter and for imposition of sentence.

Background. We recite the facts in the light most favorable to the Commonwealth, reserving certain details for our analysis of the issues raised on appeal.

At 11:48 p.m. on September 23, 2004, Springfield police Detective Norman Shink and three other officers arrived at an apartment building on Bristol Street in Springfield. Shink saw a man, who was later identified as the defendant, in front of an apartment on the second floor. The defendant lifted his shirt, revealing a bloody knife tucked into his waistband, and said, “This is the knife I used to stab him. Take it. Take it. He was beating me real bad. I had no choice. It was self-defense.”

Rodriguez lived in the apartment on Bristol Street with her three children. She was married to the victim, but the two were estranged. The victim had enlisted in the National Guard, and on July 10, 2004, was assigned to Fort Drum, in New York, to train for deployment to Iraq. At that time, the victim and Rodriguez separated. The victim left a number of personal belongings stored at the apartment, including several handguns.

In August, 2004, the defendant began staying at Rodriguez's apartment, and he was there on the evening of September 23. That day, Rodriguez received a telephone call from the victim, who had received a pass from the National Guard and planned to return to the apartment to retrieve his belongings. The victim did not specify when he would be arriving.2

The defendant was present when Rodriguez spoke with the victim. She discussed the conversation with him and encouraged

57 N.E.3d 928

him to leave before the victim arrived. The defendant did not do so.

At approximately 11:30 p.m. that evening, Rodriguez was sitting on a couch watching television in the living room. She heard a sound at the door and observed a hand reaching in through the partially opened door and sliding the chain lock up to release it and gain access to the apartment. At this point, the victim burst in and attacked her, hitting her with his fists as she covered her face with her arms. The defendant, who was in the bedroom at the time, came into the living room and said something to the victim. The victim ran at the defendant, knocking him back into the bedroom and jumping on top of him. The defendant shouted for Rodriguez to telephone the police, and Rodriguez ran to an apartment next door. One of the occupants answered the door;

475 Mass. 342

Rodriguez begged him to telephone 911 and stated that the victim had a firearm, although she had not seen the victim with any weapon. When she returned to her apartment, Rodriguez saw the victim lying on the couch, bleeding. No firearm was found in the victim's possession.

The victim went into cardiac arrest and died while being transported to the hospital. A medical examiner determined that of the eight stab wounds sustained by the victim, four had been lethal. One wound to the victim's left upper arm was defensive.

Discussion. 1. Motion to suppress statement. The defendant was arrested and interrogated by Sergeant Roy Carter and Shink at the Springfield police department in the early hours of September 24, 2004. The interview was recorded.3 ,4

Prior to questioning, Carter read and presented the defendant with the Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). When Carter instructed the defendant as to his right to an attorney,5 the defendant

57 N.E.3d 929

asked, “Is there a lawyer here present?” Carter responded, “No, there isn't.” Carter then proceeded with

475 Mass. 343

his presentation of the Miranda rights, including that the Commonwealth would provide a lawyer if the defendant could not afford one. Carter read the Miranda warnings for a second time, the defendant initialed the warnings as they were read, and the defendant indicated that he wished to speak to police.

The police then notified the defendant of his right to use the telephone. The defendant indicated that he intended to use the telephone, and Carter told him that he would be allowed to do so. The defendant checked the box indicating that he had used the telephone, and signed that he had been notified of his rights. The space on the form for timing of the defendant's telephone call was left blank, and the defendant never made a telephone call.

Prior to trial, the defendant moved to suppress his statement. He argued that the statement was obtained in violation of his Fifth Amendment rights,6 specifically that (1) he had not made a voluntary waiver of his Miranda rights due to his lack of language skills; (2) his waiver was not knowing because of the faulty Miranda warning; and (3) his statement, “Is there a lawyer here present?” constituted an invocation of his right to counsel, which invocation was not scrupulously honored.7 At an evidentiary

475 Mass. 344

hearing on the issue, the defendant, Carter, and Shink testified. Carter and Shink both testified that the defendant was eager to share his version of events. The judge credited the officers' testimony, and, after reviewing the recording of the interview, denied the motion. The judge found that the defendant had been advised of his rights, that he had a sufficient command of English to understand and waive those rights, that he had been informed of his statutory right to use the telephone, and that he had not made an unambiguous request for counsel.

On appeal, the defendant challenges the denial of his motion to suppress on three grounds: (1) the police did not scrupulously honor his invocation of his art. 12 right to counsel; (2) his statutory right to use the telephone, under, G.L. c. 276, § 33A, was intentionally violated; and (3) he did not make a knowing and voluntary Miranda waiver.

57 N.E.3d 930

a. Statutory right to use telephone. Under G.L. c. 276, § 33A, “an arrested person [must] be informed of his right to use the telephone as soon as reasonably practicable after arrival at the station.” Commonwealth v. Bouchard, 347 Mass. 418, 420, 198 N.E.2d 411 (1964). “The exclusionary rule applies to intentional deprivation by police of a defendant's rights under G.L. c. 276, § 33A.” Commonwealth v. Hampton, 457 Mass. 152, 155, 928 N.E.2d 917 (2010).

There was not an intentional deprivation of the defendant's statutory telephone rights. The defendant was informed of his right to use the telephone after waiving his Miranda rights. Carter asked the defendant if he “intend[ed] to use the [tele]phone.” The defendant said, “Yes.” Some confusion followed, as there was no indication that the defendant wanted to use the telephone at that moment or after he spoke with police. The record does reflect, however, that the defendant was eager to speak to police. In any event, although the defendant was not informed of his right to use the telephone for at least one hour and twenty-five minutes after he had been brought to the...

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