Opinion
18-P-1643
08-05-2020
COMMONWEALTH v. JUAN CASTILLO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial, the defendant, Juan Castillo, was convicted of intimidating a witness, in violation of G. L. c. 268, § 13B. On appeal, he contends that his motion to suppress was wrongfully denied because he was subjected to custodial interrogation before receiving a Miranda warning and, also, that the trial judge improperly admitted certain bad act testimony. Further, for the first time, the defendant contends that the prosecutor's closing argument was improper. We affirm.
Background. On August 17, 2014, at approximately 2:00 A.M., Mark Trussell was shot and killed while visiting a friend at a party on East Dalton Street in South Lawrence, an area referred to as the Stadium Projects. Massachusetts State Police Trooper Joshua Ulrich and Lawrence Police Detective Jay Heggarty were assigned to investigate the fatal shooting.
Over the course of the weeks that followed, Ulrich and Heggarty interviewed more than a hundred people, including some who stated they were present at the time of the shooting. One witness, Lisa LaRoche, told the officers that she had observed the shooting, and that, later that morning, at a separate party, a person whom she knew as "Fame" and also "Whiz," told her that the shooting victim "was supposed to be set up, meaning targeted to be killed." LaRoche also provided the officers with the defendant's address on Vine Street in Lawrence.
On September 4, 2014, Ulrich and Heggarty went to 25 Vine Street to meet with the defendant. The defendant agreed to speak with them, and he accompanied the officers to the Lawrence Police station. At that time, the officers believed the defendant was only a witness to Trussell's murder or, at a minimum, that he had helpful information. Nonetheless, the officers provided the defendant with Miranda warnings "which he knowingly and voluntarily waived."
The ensuing interview was recorded with the defendant's permission and, afterwards, Ulrich gave the defendant a grand jury summons for September 8. The motion judge explicitly credited the officers' testimony that the defendant was not a suspect at that time, but merely a reluctant witness.
On September 8, the defendant arrived and met with Heggarty and with Assistant District Attorney Forlizzi. The defendant initially informed Forlizzi and Heggarty that he was not at the party when the shooting occurred. Later in the interview, the defendant stated he was at the party, and he saw that Jeremiah Torres was the shooter. The defendant was asked who belonged to the gang known as "NTO" and the defendant named Torres. The defendant also stated that he, himself, was known as "Fame" and that he took the name out of respect for an older gang member, John Burgos. The defendant continued to mention different street names; he indicated he didn't know the parties' first names, but he knew the individuals from Facebook.
The investigators provided the defendant with an iPad, and, on his Facebook account, the defendant reviewed some Facebook exchanges that he had conducted with a person named Mark Pimentel, also known as "Biggs." The defendant, in these Facebook exchanges, told Pimentel to retract his statements to the police that the defendant was at the scene of the shooting. As he was speaking, the defendant was interpreting for Ulrich certain street lingo that indicated to Ulrich that the defendant was trying to intimidate Pimentel and prevent him from talking to the police -- apart from retracting his statement that the defendant had been at the party.
After the interview, and the assistant district attorney's review of the defendant's Facebook page, the defendant was arrested and charged with intimidation of a witness. The defendant was booked at the Danvers State Police barracks, and Heggarty was in charge of watching him. The defendant was crying and upset; he also repeatedly asked, "Why did you do this to me?" Heggarty engaged in small talk with the defendant in an attempt to change the conversation and persuade him to calm down. The defendant started to talk about gangs in Lawrence, as well as various crimes.
At that point, the motion judge found, "[t]he defendant seemed relaxed" and Heggarty was not trying to elicit information, but merely to calm the defendant down. The judge noted that the defendant was not readvised of his Miranda rights at that point, but credited Heggarty's testimony that he had no intention to ask any further questions.
The judge also found explicitly that it was the defendant who raised the issue of the shooting during the conversation, saying that he saw Johnny Sanchez at the party, and recognized him from "prior dealings." The defendant volunteered that, a few months before the shooting, he and Burgos had had a fight with Sanchez; and, that, about a week after the shooting, Sanchez had chased after the defendant, but the defendant took off.
On December 23, 2014, the Commonwealth charged the defendant with Trussell's murder. The Commonwealth's theory was, essentially, that the defendant attempted to set up Sanchez to avenge a prior shooting by one of Sanchez's gang members, and the shooters mistook Trussell for Sanchez.
At trial, Pimentel -- the alleged victim in the defendant's witness intimidation charge -- testified about the night of Mark Trussell's murder and the defendant's subsequent actions. Pimentel explained that he was the disc jockey, or DJ, at the party where the shooting occurred. There were about fifty people at the party, between the ages of eighteen and twenty-five and they were all outside. He identified the defendant as someone he knew as "Fame" and pointed him out; he testified that Fame was at the Stadium Projects the night of the shooting and that he was "Facebook friends" with him.
Immediately before the shooting started, Pimentel was sitting on a bench, talking and drinking. The murder victim, Mark Trussell, was near him on the steps to the right and a man named "Little Johnny" was a little bit behind Pimentel. Pimentel saw the two shooters come into the party, "walk in and high five a couple people, and then shoot, then leave." He described a "high five" as a "dap" and agreed that the shooters "dapped up J.D., Bubi, Fame, and Carlito Suave." Pimentel knew the two shooters as friends, saying they were Jermaine and Jeremiah Torres, that he had DJ'd parties for them, and that they had come to his birthday party. Only Jeremiah was shooting and "he hit Mark and the walls." Afterward, Bubi and someone named Marcos stood over Trussell, one of them turning his body over and the other taking a video of his face.
Pimentel had earlier identified photographs of each of those named individuals.
Pimentel testified that no one called 911 or otherwise tried to help Trussell. Afterward, he ran to his girlfriend's house, where there was a party, and a number of people were in the kitchen "looking at the video of Mark." "Wiz," whom he also identified as the defendant, was one of the people there, walking around and talking to people; Pimentel had known him before and thought he was "a cool dude." Pimentel described the defendant as "talkative" and he testified that Wiz said "that Mark died because he owed money for drugs or something . . . eight balls." Wiz also told Pimentel that he had set Mark up because he owed him money for eight balls.
Pimentel testified that, a few weeks after the shooting, he received a Facebook message from Wiz. What followed was a lengthy exchange between the two, conducted, as noted supra, using colloquial terms, with the prosecutor asking repeatedly for translations. In essence, the defendant, or "Fame," accused Pimentel of speaking to the police about him. Pimentel denied that he had done so and asked why the defendant was "coming at" him. The defendant responded that police officers had picked him up and said that he was present when Trussell was shot; as a result he was afraid he would have to go to court and might be charged with murder. He told Pimentel that all Pimentel had to do was to say that he, Fame, wasn't there "when they set him up" or he would "ride on you and anybody else . . . that said my name."
The Facebook account was for "Fame Messiah TheTeacher," whom Pimentel identified as "[m]y man Wiz over there," indicating the defendant." Apparently, this is the account that the defendant showed to Heggarty at the barracks.
Pimentel explained he understood the defendant's message "ride on you" to mean, "He probably going to shoot at me." He told the defendant that he would go to the police ("I'll turn myself in right now"), and said that he didn't say anything to the police about the defendant, but had given them another name. The defendant responded that he didn't care "if you did say my name all you gotta do is say it wasnt me and that I wasnt there WHEN he got shot." Pimentel testified that, at that point, he was afraid for his personal safety and wanted the defendant to stop harassing him; he responded that he hadn't given the police the defendant's name and the defendant responded, "[T]hat's all you gotta say and say 'He wasnt there when they shot him and he already left.'" Pimentel responded, "I promise ima say what u said. Ima turn myself in right now. . . . Don't do nothing to me i dont wanna die." The defendant responded, "just do as i told you, so I can get left alone or else." Pimentel told him "Bro im just saying no ones going to jail relax bro ima say what u said."
Pimentel asked the defendant whether he wanted him to go in then -- or if he wanted him to wait until the next court date. The defendant responded, "[Y]eah cus i know they gon ask you bout me . . . [And in all caps he wrote,] "YOU AIN'T SEE ME, I LEFT BEFORE THE ACCIDENT, I AINT SAY OR DO SHIT."
Pimentel testified that he wanted the threats to stop and that he was afraid because he previously had seen the defendant with a gun. When the prosecutor asked when that had happened, Pimentel responded, "I don't know. I've been to a lot of parties." However, Pimentel also testified that witnessing the defendant with a gun did not make him feel "anything." As noted, the jury ultimately convicted the defendant of witness intimidation and acquitted him of the murder charge.
Discussion. 1. Motion to suppress. The defendant first argues that the motion judge, who was not the trial judge, erred in ruling that statements the defendant made to Heggarty while the defendant was in custody were admissible, despite the absence, in his view, of a valid waiver of his Miranda rights; the judge concluded that the statements were not the product of police interrogation and also that they were voluntary. We affirm, essentially for the reasons well explained by the motion judge.
In reviewing a ruling on a motion to suppress, "we accept the judge's subsidiary findings of fact absent clear error and leave to the judge the responsibility of determining the weight and credibility to be given oral testimony presented at the motion hearing." Commonwealth v. Wilson, 441 Mass. 390, 393 (2004). "We review independently the application of constitutional principles to the facts found." Commonwealth v. Ferreira, 481 Mass. 641, 653 (2019), quoting Wilson, supra.
Miranda warnings are required when a defendant is "subject to custodial interrogation," that is, when "a person in custody is subjected to either express questioning or its functional equivalent." Commonwealth v. Torres, 424 Mass. 792, 796-797 (1997), quoting Rhode Island v. Innis, 446 U.S. 291, 300-301 (1980). Here, the defendant was not subjected to express questioning; the only question is whether he was subjected to its "functional equivalent," which encompasses "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Torres, supra at 797, quoting Innis, supra at 301. "The functional equivalent of interrogation does not turn on the subjective intent of the particular police officer, but on an objective assessment as to whether the police statements and conduct would be perceived as interrogation by a reasonable person in the same circumstances." Torres, supra, quoting United States v. Taylor, 985 F.2d 3, 7 (1st Cir.), cert. denied, 508 U.S. 944 (1993). A statement made spontaneously and not in response to statements that would be perceived as interrogation, or its functional equivalent, is not subject to suppression. See Commonwealth v. Braley, 449 Mass. 316, 323-326 (2007) (no interrogation or functional equivalent, where defendant spontaneously asked officers, "How did you get on to me," during casual conversation, while waiting to board commercial airline back to Massachusetts).
Here, as the judge found, Heggarty initiated the interaction in order to calm the defendant -- who was visibly upset, crying and repeating, "Why did you do this to me?" See Commonwealth v. Diaz, 422 Mass. 269, 271 (1996) ("The first statement was spontaneous and unprovoked. The detective's response, a one word question, seems to have been a natural reflex action [as the judge found] that was invited by the defendant's first statement. Although the second statement was incriminatory, it was volunteered and not the product of improper probing questioning"). Next, in an effort to establish common ground and connect with someone who was not a person of interest in the murder, Heggarty brought up an area of common interest -- gangs and street crime in Lawrence. The motion judge noted that, during the conversation, the defendant was quite loquacious; he initially brought up Sanchez and the shootings and volunteered the information that he recognized Johnny Sanchez at the party. See Commonwealth v. D'Entremont, 36 Mass. App. Ct. 474, 479-480 (1994) (officer's statements that "struck a responsive chord" did not amount to interrogation where officer's "statement was neither confrontational nor inquisitional; it was no more than it purported to be: an expression of her availability if he wanted to talk"). See also Commonwealth v. Ferrera, 68 Mass. App. Ct. 544, 547 (2007). The defendant then told Heggarty that he recognized Sanchez from a prior incident, specifically that a few months before the shooting, he and John Burgos fought Sanchez at a Sam's store. The defendant also admitted that Sanchez had chased after him recently, but that the defendant "took off."
We are satisfied that the judge's reasoning was correct -- a reasonable person in the same circumstances as the defendant would not perceive Heggarty's questions as interrogation. See Torres, 424 Mass. at 797-798. We reiterate that the defendant was not at the time a person of interest in the murder; the defendant was crying and asking why the police had done this to him; Heggarty initiated the conversation to calm the defendant down; and the defendant initiated the discussion about Sanchez and the shooting. Finally, we note that, as the Commonwealth argues, complete and unchallenged warnings had been given to the defendant approximately four hours earlier.
2. Bad act evidence. The defendant next argues that the trial judge committed reversible error in admitting certain bad act evidence, specifically, Pimentel's testimony that, before Mark Trussell was murdered, he had seen the defendant with a gun at parties. The defendant argues that telling the jury that the defendant "may have possessed unspecified firearms months before the incident" permitted the jury to infer that the defendant was a violent man.
This issue was raised both prior to trial and as the testimony came in. In allowing the Commonwealth's pretrial motion in limine, the motion judge, who was the trial judge, found that the evidence was relevant on the issue of Pimentel's state of mind; that is, the fact of having seen the defendant with a gun could have affected Pimentel when he was evaluating his Facebook exchange with the defendant. The judge concluded that the probative value of that evidence outweighed any prejudicial impact. At trial, the defendant renewed his objection and moved to strike Pimentel's testimony. The judge denied the defendant's motion to strike, explaining:
"What is clear from this witness is, first of all, this witness has been intimidated. That evidence has already come in. And there have been threatening statements that were made that are in writing, and the witness is clearly withdrawing some answers that he had previously given. I
think the jury could conclude that that is out of fear, and that his knowledge that he had seen the defendant with guns, his statement that that doesn't -- that he's not afraid, that is up to the jury to decide whether that had some impact on him in his statement that he's not afraid. When you look at the circumstances in total, including the intimidation, including that he's seen him with guns, and including that you could see as the witness testifies, an objective juror might conclude that he is still in fear, that might lead him to say something like, I'm not afraid of guns, when in fact jurors might conclude that he is afraid of the defendant having a gun. So I understand that the witness's statement is not declarative that he was afraid of the gun, but the overall set of circumstances allows the evidence to stand because the jury could find that he was afraid of guns, and in fact his answer was the result of that fear."The defendant did not seek any limiting instruction at that time, and none was given.
We see no error. Generally, "'evidence of [prior bad acts] is not admissible to prove bad character.' . . . It may, however, be admissible for other relevant purposes." Commonwealth v. Martinez, 43 Mass. App. Ct. 408, 412 (1997), quoting Commonwealth v. Hoffer, 375 Mass. 369, 372 (1978). "So long as the probative value of such evidence is not . . . outweighed by the danger of prejudice -- a matter for the trial judge to determine -- we will not disturb its admission absent palpable error." Martinez, supra. See Commonwealth v. Gonzalez, 469 Mass. 410, 421 (2014) ("We uphold a judge's decision to admit prior bad acts absent an abuse of discretion").
"In order to prove the defendant guilty of intimidation of a witness in violation of G. L. c. 268, § 13B, the Commonwealth was required to show that the defendant, either directly or indirectly, made a wilful effort to intimidate or harass another person who was a witness or potential witness at any stage of a criminal investigation or proceeding." Commonwealth v. Carvalho, 88 Mass. App. Ct. 840, 845 (2016), citing Hrycenko v. Commonwealth, 459 Mass. 503, 507 (2011).
Here, the testimony about seeing a gun -- which was fleeting in the context of approximately 125 pages of testimony -- was properly offered and admitted as probative of the defendant's threatening and intimidating intent and the impact of his words on the mind of the victim. See Carvalho, 88 Mass. App. Ct. at 845-846, quoting Commonwealth v. Pagels, 69 Mass. App. Ct. 607, 613 (2007) ("The assessment whether the defendant made a threat is not confined to a technical analysis of the precise words uttered[;] . . . the jury may consider the context in which the allegedly threatening statement was made and all of the surrounding circumstances"). The victim's knowledge that the defendant had possessed a firearm in the past is highly probative on the issue of the effect on the victim of the defendant's threat that he was going to "ride on" the witness.
3. Prosecutor's closing argument. Finally -- and for the first time on appeal -- the defendant challenges portions of the prosecutor's closing argument. We review to determine whether there was error and, if so, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Ferreira, 460 Mass. 781, 788 (2011). The defendant contends there were two specific errors: (1) a statement speculating that perhaps Sanchez chased the defendant because the defendant had set him up, and (2) the suggestion that the fact that, during his testimony, Pimentel repeatedly looked at the defendant indicated that he was afraid of him. The defendant argues that the statements created a substantial risk of a miscarriage of justice because the jury could have considered them as indicating there was proof that the defendant was a dangerous man and, further, that Pimentel must have been terrified by the Facebook messages because the defendant had "set [Sanchez] up to die."
"Remarks made during closing argument are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Whitman, 453 Mass. 331, 343 (2009). "A prosecutor must limit comment in closing statement to the evidence and fair inferences that can be drawn from the evidence." Commonwealth v. Cole, 473 Mass. 317, 333 (2015), quoting Commonwealth v. Kelly, 417 Mass. 266, 270 (1994). To determine whether prejudice resulted from a prosecutor's closing argument,
"we consider (1) whether the defendant seasonably objected; (2) whether the error was limited to collateral issues or went to the heart of the case; (3) what specific or general instructions the judge gave to the jury that may have mitigated the mistake; and (4) whether the error, in the circumstances, possibly made a difference in the jury's conclusions."Commonwealth v. Grinkley, 75 Mass. App. Ct. 798, 807 (2009), quoting Commonwealth v. Kater, 432 Mass. 404, 422-423 (2000).
As noted, during the trial, the defendant did not object to the prosecutor's argument. "The absence of an objection is some indication that the argument did not land a hard, foul blow, and was not unfairly prejudicial. See Commonwealth v. Toro, 395 Mass. 354, 360 (1985)." Commonwealth v. Johnston, 467 Mass. 674, 695 (2014). Further, the prosecutor is entitled to ask the jury to draw reasonable inferences from the testimony and, after consideration, we cannot say that those inferences were unreasonable on the evidence. See Commonwealth v. Duguay, 430 Mass. 397, 404 (1999), quoting Commonwealth v. Chavis, 415 Mass. 703, 713 (1993) ("In a closing argument, the prosecutor may 'comment on evidence developed at trial and draw inferences from such evidence.' Here, evidence regarding each of these items was presented at trial. In [his] closing argument, the prosecutor drew the jury's attention to this evidence and then made inferences from this evidence").
In addition, the judge here specifically instructed the jury that closing arguments and opening statements are not evidence and that it is the jury's memory of the evidence that controls. See Commonwealth v. Auclair, 444 Mass. 348, 360 (2005) ("Juries are presumed to follow [the judge's] instructions"). Finally, the evidence of witness intimidation here was overwhelming -- as defense counsel acknowledged in his sentencing argument. We see no error and certainly no risk of a miscarriage of justice.
In his sentencing argument, counsel told the judge, "If [the defendant] was not indicted for murder, I would suggest, we, he would have attempted to resolve that case a long time ago and accepted responsibility for that action. The trial, we did not contest it. It was a foregone conclusion."
Judgment affirmed.
By the Court (Hanlon, Wendlandt & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 5, 2020.