Court: Massachusetts Supreme Judicial Court; July 19, 2011; Massachusetts; State Supreme Court
On June 4, 1999, Mario Cordova was shot outside 5 Lionel Benoit Road in Springfield, dying from his injuries on June 9. Five men were indicted for his murder, with three—Alberto Montanez, Felix Padilla, Jr., and Adrian Rivera—pleading guilty to manslaughter. Montanez and Rivera cooperated with the Commonwealth, testifying against Jason Rivas, the alleged shooter, and Jose Rosario, the defendant. Rivas was convicted of first-degree murder in 2000 but later granted a new trial, ultimately pleading guilty to manslaughter in 2007. Rosario was found guilty of first-degree murder on September 28, 2000, and sentenced to life in prison. He filed an appeal on October 27, 2000, followed by a motion for a new trial in 2001, which was remanded to the Superior Court.
Rosario's appeal raised several points: the trial judge's alleged errors in jury instructions regarding intent for premeditated murder; permitting witnesses to claim they were testifying truthfully per their cooperation agreements; allowing a witness to discuss gang violence against cooperators; and refusing to dismiss a juror who felt threatened by a relative of Rosario. He also argued that the judge abused discretion in denying a new trial based on new evidence that challenged Rivera's credibility and the existence of an undisclosed cooperation agreement involving another witness, Luis Rodriguez. Rosario requested that his conviction be reduced to involuntary manslaughter under G. L. c. 278, § 33E.
The trial evidence indicated Rosario was a "regional officer" of the Latin Kings gang and had multiple confrontations with Cordova and his friend, Johnel Olmo, over alleged thefts. These included a threat with a shotgun and intimidation with a group armed with a shotgun and a baseball bat. On the evening of the shooting, Jenette Vasquez hosted a gathering where Rosario was present before the victim and Olmo arrived. During a phone call with Olmo, Rosario ominously stated, "I’m your worst nightmare." Shortly after, he and a neighbor left the apartment, leading to the fatal encounter. The court affirmed the convictions and denied the motion for a new trial, rejecting Rosario's requests for relief and conviction reduction.
Montanez, Padilla, Rivas, and Rivera, all subordinate members of the Latin Kings gang, gathered at Rivera's house. Montanez indicated that failure to comply with higher-ranking members could lead to severe consequences. Prior to midnight, the defendant called Padilla, instructing him to pick up a handgun from Rivera's home. After retrieving the weapon, the group left in Padilla's car. The defendant expressed to Padilla and Rivas that he had conflicts with the victim, Rodriguez, and another individual, Olmo. He directed Padilla to drive to 5 Lionel Benoit Road, claiming he anticipated encountering a problem with a young man there.
Upon arrival, the defendant instructed Montanez to give the gun to Rivas and to wait between buildings. Padilla drove away with the headlights off as the victim and others exited a nearby apartment. Montanez witnessed Padilla make a U-turn, after which the defendant ran to him and Rivas, pointed at the victim, and urged them to act. Rivas shot the victim three times, with the first shot fatally striking him in the head. Following the shooting, the group returned to Padilla's car, and the defendant remarked about hitting someone.
The victim was later hospitalized but died six days post-shooting. At work the next day, the defendant appeared agitated and made incriminating comments to a coworker. Subsequently, he contacted Olmo, referencing 'Latin King love.' On June 10, 1999, Rivera, accompanied by high-ranking gang members, provided a false statement to police, claiming Padilla acted alone, pressured by Serrano who suggested blaming Padilla due to his alleged cooperation with authorities. Rivera later recanted this statement in court. Montanez, arrested on unrelated drug charges, also admitted to initially lying to police about the shooting but testified truthfully against the defendant at trial.
The judge instructed the jury that to convict the defendant of first-degree premeditated murder, the Commonwealth must demonstrate beyond a reasonable doubt that the killing was executed with malice, defined as an intent to cause death. The defendant argued that the instruction lost its effect due to a subsequent statement allowing the jury to infer malice from the use of a dangerous weapon, which could imply a lack of specific intent to kill. He claimed it was erroneous for the judge not to provide a Jiles instruction clarifying that only specific intent to kill can support a first-degree murder conviction.
The Commonwealth contended that the defendant failed to preserve the claim of error by not objecting after the instruction was given and that, even if preserved, no prejudicial error occurred. The judge had allowed the defendant's request for a Jiles instruction but did not deliver it verbatim, and the defendant did not object at that time. The court noted that the failure to object meant the issue was not preserved for appeal.
Moreover, the court found that the judge's instructions were correct and did not create a substantial likelihood of a miscarriage of justice. The judge clearly stated that only intent to cause the victim's death supported a first-degree murder conviction, contrasting it with the three prongs of malice required for second-degree murder. The instruction regarding inferring malice from the use of a dangerous weapon did not adversely affect the outcome, given that an accomplice fired three shots at the victim from close range.
Montanez and Rivera, charged with first-degree murder, entered cooperation agreements with the Commonwealth. The defendant sought to prevent the Commonwealth from referencing the agreements' requirement for truthful testimony, a motion the judge granted. The prosecutor was permitted to lead witnesses to avoid mentioning truthfulness. During Montanez's direct examination, he indicated that his agreement required him to testify truthfully, prompting the defense to object. At sidebar, the judge decided to instruct the jury to disregard Montanez's mention of truthfulness, and the defense requested a mistrial, which was denied. The judge's instructions emphasized that the jury alone would determine the credibility of testimony, aligning with the standards set in Commonwealth v. Ciampa.
The judge's instructions were deemed sufficient to address potential prejudice against the defendant. In the case of Rivera, his cooperation agreement's truthfulness requirement surfaced during redirect examination. Although Rivera initially stated his testimony would be considered in light of his pending charges, he later admitted to lying to police. The prosecutor's inquiry about Rivera's obligation to testify truthfully was initially objected to by the defense but was allowed after a sidebar discussion, as it was relevant to addressing Rivera's credibility on cross-examination. Rivera confirmed his obligation to tell the "absolute truth," reinforcing the importance of truthful testimony per the cooperation agreement.
The defendant acknowledges that redirect examination can address the obligation to tell the truth but contends that the prosecutor's persistent questioning of witness Rivera regarding his truthfulness, along with implications in the closing argument that witnesses Montanez and Rivera were credible, amounted to impermissible and prejudicial prosecutorial vouching. The court assesses whether the prosecutor's remarks during closing, which defense counsel did not object to, constituted improper vouching that could lead to a miscarriage of justice, referencing Commonwealth v. Wilson. Improper vouching occurs when an attorney expresses personal belief in a witness's credibility or claims knowledge beyond the evidence presented. The defendant cites Commonwealth v. Lindsey but notes that in Lindsey, the issue was a judge's failure to provide a Ciampa instruction after a prosecutor's statement about witness cooperation requiring truthful testimony. The prosecutor’s comments in Lindsey approached explicit vouching, suggesting a commitment to finding the truth. In contrast, the prosecutor's statements in this case merely addressed defense counsel's focus on inconsistencies in witness testimony and reiterated the witnesses' admissions of involvement in the crime, without implying independent knowledge of their truthfulness. Therefore, there was no error. Additionally, the defendant argues that the admission of Rivera's testimony about fearing violence from the Latin Kings gang constituted prejudicial error by suggesting the defendant used violence against cooperating witnesses, labeling it irrelevant and inadmissible prior bad act evidence.
During the Commonwealth’s redirect examination of Rivera, he testified about his fears of gang retaliation for cooperating with law enforcement, specifically mentioning that Latin Kings members would retaliate against those who testify. He recounted experiences of violence against cooperating witnesses, which was presented despite the defendant's objections. The judge instructed the jury that evidence of gang association could not be used to infer the defendant's character or propensity for crime but only to understand his motive. The admissibility of prior bad acts and gang evidence is at the trial judge’s discretion and can only be overturned by a reviewing court in cases of palpable error. The defendant must demonstrate an abuse of discretion that resulted in prejudice, which he failed to do. The court affirmed that gang affiliation evidence is admissible to demonstrate motive or joint venture. Additionally, the judge took steps to minimize prejudice from such evidence through voir dire and specific jury instructions. Rivera's concerns about retaliation were deemed relevant to his credibility after the defense questioned his motives, and the judge's instructions effectively mitigated potential prejudice. Thus, no abuse of discretion was found.
A juror reported to the judge during trial that she believed she had been followed by someone present in the courtroom. Following a voir dire, she could not identify the individual but indicated she could remain impartial and did not feel afraid. The judge conducted individual voir dire for other jurors to assess any potential influence from the incident; three additional jurors had heard about it but also asserted their ability to remain impartial. The defendant moved to discharge the reporting juror and one who heard about the incident, or alternatively, requested a mistrial, both of which the judge denied. The judge found no prejudice, exercising discretion as established in *Commonwealth v. Federici* and *Commonwealth v. Boyer*.
In a subsequent motion for a new trial filed on October 24, 2001, the defendant argued that newly discovered evidence undermined the convictions. The judge denied this motion on May 7, 2010. The court's standard for granting a new trial requires that newly discovered evidence must be credible, material, and must cast real doubt on the conviction, as outlined in *Commonwealth v. Grace*. The appellate court reviews the trial judge's decisions for significant legal errors or abuses of discretion, granting deference to those findings, especially when the motion judge was also the trial judge. Findings of fact made during an evidentiary hearing are upheld if they are supported by the record, with the judge being the final authority on credibility issues.
Mark A. Gilday, an inmate at the Hampshire County jail, reported to the Hampden County district attorney that Rivera admitted to lying about Padilla’s phone call during the shooting and claimed he was promised a reduced sentence in exchange for his testimony. Gilday reiterated these claims in an affidavit and during an evidentiary hearing, but the judge deemed him not credible, citing his extensive criminal background and prior legal experience. She highlighted inconsistencies, such as Gilday’s assertion that Rivera sought help drafting a cooperation agreement when one had already been executed by Rivera’s attorney. The judge found Gilday's claims cumulative of other impeachment evidence available at trial, concluding there was no abuse of discretion.
Regarding the cooperation agreement with eyewitness Rodriguez, the defendant argued that the judge improperly denied his motion for a new trial based on newly discovered evidence. After Rodriguez testified, his attorney contacted the prosecutor, suggesting there was an agreement regarding his testimony. The judge conducted a voir dire, during which both Rodriguez and his attorney testified, but found no formal agreement existed, despite their belief that a conversation implied one. The defense had the option to recall Rodriguez for further questioning but declined. The defendant later submitted an unsigned letter on district attorney letterhead, indicating a possible agreement. The judge ruled this letter did not confirm an agreement but rather suggested a potential deal. She also noted that the defendant had the opportunity to inform the jury of his belief about an agreement but chose not to. Thus, the judge found no abuse of discretion in her rulings.
The defendant contends that the trial evidence supports a conviction for involuntary manslaughter rather than first-degree murder. Under G. L. c. 278, § 33E, the court reviewed the record to assess this claim and to evaluate if the murder conviction could lead to a substantial likelihood of a miscarriage of justice. The jury found the defendant guilty of first-degree murder based on strong evidence, including his history of threats against the victim and his friend Olmo, instructions given to subordinates to retrieve a firearm, and directing an accomplice, Rivas, to shoot the victim from a distance of about twenty feet. Eyewitnesses and the testimonies of his accomplices corroborated the events leading to the shooting. The court affirmed the first-degree murder conviction, finding no substantial likelihood of a miscarriage of justice. Additionally, the defendant was convicted of multiple firearm-related offenses, receiving concurrent sentences ranging from three months to five years. The trial judge denied a motion for a new trial after an evidentiary hearing, and this denial has been consolidated with the defendant's direct appeal currently under review.
The defendant's lengthy delay in proceedings stemmed from a successful motion to stay his new trial request while awaiting the conclusion of discovery and a decision on codefendant Jason Rivas’s new trial motion. On May 7, 2010, the judge denied both the defendant’s motion for a new trial and his motion to set aside the jury verdict to enter a manslaughter judgment, which he filed on October 22, 2008. Key figures included Alberto Montanez, a 'first crown' gang member, and Padilla, a 'third crown,' while Rivera and Rivas had no gang rank. The firearm involved was never recovered. The judge instructed the jury that a firearm is legally deemed a dangerous weapon and ordered them to disregard any references to 'truthful testimony' in witness statements, emphasizing that the jury alone determines the truthfulness of witness claims. The judge highlighted the testimony of Montanez and Rivera, who had agreements with the Commonwealth regarding their cooperation and truthful testimony, advising the jury to assess their credibility carefully, considering possible motivations for bias. Defense counsel raised concerns about a juror potentially identifying the defendant’s uncle, and Luis Rodriguez, a non-involved guest that night, testified about his own drug offenses and vague assurances from the prosecutor regarding potential help with his cases. Fogarty, a witness, confirmed that no formal agreement existed regarding Rodriguez's situation.
