Opinion
No. 11–P–1979.
2013-04-1
COMMONWEALTH v. Jamie HERNANDEZ.
By the Court (GRAINGER, MEADE & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was indicted for first degree murder in connection with a stabbing at Nantasket Beach. After a two-week trial in Superior Court, a jury convicted him of voluntary manslaughter. On appeal, he argues primarily that certain inculpatory statements he made should have been suppressed as involuntary, and that the prosecutor impermissibly vouched for a Commonwealth witness. We affirm.
Voluntariness. Three witnesses testified that they had heard the defendant make inculpatory statements. The defendant now argues that due to his limited mental capacity, those statements should have been suppressed as involuntary. See Commonwealth v. Libran, 405 Mass. 634, 638 (1989). This claim was never raised before the trial judge. However, the defendant asserts that a “substantial claim of involuntariness” was apparent on the trial record, and that the judge therefore had a duty to suspend the trial sua sponte and conduct a voir dire to evaluate the voluntariness of the defendant's statements. See Commonwealth v. Sheriff, 425 Mass. 186, 195 (1997). “Although limited intelligence is a factor in examining the totality of the circumstances ..., its mere existence is not outcome determinative” with regard to a statement's voluntariness. Commonwealth v. Delacruz, 463 Mass. 504, 515–516 (2012). Evidence of the defendant's low intelligence therefore could not trigger a judicial duty to inquire into voluntariness sua sponte absent some additional factor suggesting that the statements were not “the product of a rational intellect and a free will.” Commonwealth v. Jackson, 432 Mass. 82, 85 (2000), quoting from Commonwealth v. Davis, 403 Mass. 575, 581 (1988).
Both experts at trial testified that the defendant's IQ (intelligence quotient) was in the mid-seventies.
The defendant claims that an additional factor is present with regard to the testimony of Joseph Lee Roberts, with whom the defendant was incarcerated at the Plymouth House of Correction. Specifically, the defendant contends that the prison setting in which the statements were made was inherently coercive, and that this coerciveness combined with his limited intelligence to render the statements involuntary. The defendant presented no testimony at trial—expert or otherwise—as to how the two factors could interact, nor did he make any argument that the statements were involuntary. He focused instead on attacking Roberts's credibility, arguing that Roberts had fabricated the statements in an attempt to gain favorable treatment in his own case.
“We have reversed a conviction because of the absence of a sua sponte inquiry only where there is a claim of involuntariness far more substantial than this.” Commonwealth v. Murphy, 426 Mass. 395, 398 (1998). Indeed, the record and the case law provide little reason to believe that Roberts's testimony would have been suppressed had the judge conducted a voir dire. There was no error in admitting the testimony absent any objection by the defendant, and no substantial risk of a miscarriage of justice.
Compare Commonwealth v. Harris, 371 Mass. 462, 470–472 (1976), and Commonwealth v. Sheriff, 425 Mass. at 193–195, with Commonwealth v. Murphy, supra at 397–399, and Commonwealth v. Bandy, 38 Mass.App.Ct. 329, 331–332 (1995).
The defendant has cited no case where a statement was suppressed as involuntary because of a defendant's low intelligence absent some form of interrogation. Here, notably, in allowing the defendant's motion to suppress a separate confession to the police, the motion judge (who was not the trial judge) found that the defendant was incapable of understanding the Miranda warnings and making a valid waiver, but did not find that the confession itself was involuntary.
Similarly, because voluntariness was not a live issue at trial, the judge had no obligation to give a “humane practice” jury instruction. See Commonwealth v. Murphy, supra at 399.
Vouching. As noted, the defense strategy with regard to Roberts was to attack his credibility, partially through a suggestion that he hoped to gain favorable treatment in his own case in exchange for testifying against the defendant. The cross-examination on this topic was forceful and extensive. On redirect, the prosecutor was permitted to introduce the letter containing the terms of the agreement pursuant to which Roberts was testifying. The letter states that the prosecutor agreed to inform the parole board that Roberts “voluntarily came forward and provided important testimony in a murder case,” but that there was neither an agreed “quid pro quo” as to a modification of Roberts's sentence nor a promise to refrain from pursuing a determination that Roberts is a “sexually dangerous person.” The defendant now points to a number of statements in the letter that he contends crossed the line into impermissible vouching.
An illustrative example of the passages of which the defendant now complains is the prosecutor's statement that he considers Roberts “a witness who came forward out of your sense of human decency when you were struck by the content and tone of the admissions by the defendant that he stabbed the victim.”
At trial, the defendant objected to the admission of the letter as a whole on general relevance grounds. However, once the defendant had raised the possibility that Roberts was lying in order to obtain favorable treatment from the Commonwealth, the introduction of the actual terms of the agreement plainly was proper. See Commonwealth v. Ciampa, 406 Mass. 257, 264 (1989). The defendant did not raise the vouching issue before the trial judge or request that the letter be redacted.
We therefore review only for a substantial risk of a miscarriage of justice. See Commonwealth v. Rivera, 425 Mass. 633, 636–637 (1997). The judge's failure to consider, sua sponte, whether to redact portions of the letter was not error, let alone one that caused a substantial risk of a miscarriage of justice. In addition, as noted, the prosecutor introduced the letter only on redirect, after the defendant had raised the specter of a possible “gentlemen's agreement” between Roberts and the Commonwealth. Deferring such evidence until after the defendant has attacked the witness's credibility “tend[s] to mitigate the appearance of prosecutorial vouching that similar questions on direct examination might create.” Commonwealth v. Ciampa, 406 Mass. at 264. Moreover, the prosecutor went out of his way not to vouch for Roberts during his closing argument, acknowledging that Roberts's testimony might be suspect and reminding the jury that it was their place to assess his credibility.
Finally, the judge specifically instructed the jury to scrutinize carefully the testimony of someone testifying under a favorable treatment agreement, and emphasized that “[a] favorable treatment agreement between the witness and the prosecution cannot be considered as a suggestion that the prosecution or the police have any knowledge or opinion about the truthfulness of the witness's testimony.” Compare Commonwealth v. Rosario, 460 Mass. 181, 188–189 (2011). We presume the jury followed those instructions. Although the judge might have redacted portions of the letter had the defendant so requested, its admission without those redactions did not cause a substantial risk of a miscarriage of justice. Compare id. at 188–191. Indeed, Roberts's credibility had been so severely undermined on cross-examination that to the extent the relevant passages could be taken as vouching for Roberts, this might actually have hurt the Commonwealth's case.
For example, in addition to exploring Roberts's potential bias, the defendant's cross-examination went into the nature of the crimes for which Roberts had been convicted (multiple child rapes), his past commitment to a mental hospital, multiple extravagant claims he had previously made (such as his claim of working with the FBI to bring down a “terrorist organization leader” and his claim that his own problems could be attributed to a conspiracy of Gypsies), and the fact that while he claimed knowledge of the details of the crime that only the police and the perpetrator would know, his description of the details was at odds with the other evidence.
Other arguments. The defendant claims error in the admission of a photograph of the defendant from a newspaper article about the defendant's arrest. Compare Commonwealth v. Sylvia, 456 Mass. 182, 190 (2010). In his opening statement, defense counsel told the jury about the photograph and claimed that several witnesses' identifications of the defendant relied on it. Under these circumstances, where the defendant had first raised the issue and his intention to cross-examine the witnesses about the photograph was plain, the judge did not err in permitting the Commonwealth to introduce the photo. Cf. Commonwealth v. Stewart, 454 Mass. 527, 538 (2009).
Nor was there error in the admission of testimony from Paul Purpora about the relationship between the defendant and Andre Soares. Purpora's testimony that he had been friendly with Soares for eight years and that Soares had introduced Purpora to the defendant was sufficient to establish Purpora's personal knowledge on the topic.
Judgment affirmed.