Commonwealth v. Alicea

985 N.E.2d 1197, 464 Mass. 837, 2013 WL 1459256, 2013 Mass. LEXIS 172
CourtMassachusetts Supreme Judicial Court
DecidedApril 12, 2013
StatusPublished
Cited by28 cases

This text of 985 N.E.2d 1197 (Commonwealth v. Alicea) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Alicea, 985 N.E.2d 1197, 464 Mass. 837, 2013 WL 1459256, 2013 Mass. LEXIS 172 (Mass. 2013).

Opinion

Botsford, J.

In January, 2004, a Superior Court jury found the defendant, Juan Pablo Alicea, guilty of murder in the first degree of Hylas Strange, III, based on a theory of extreme atrocity or cruelty,1 and assault and battery of Larisa Andujar by means of a dangerous weapon.2 The charges concerned a shooting on the outdoor stairs of an apartment building that resulted in the death of Strange and a gunshot wound to Andujar. The defendant appeals from his convictions and from the trial judge’s denial of his motion for a new trial. He argues that the judge erroneously accepted the assertion by a witness of privilege under the Fifth Amendment to the United States Constitution and conducted a defective hearing on the witness’s claim of privilege; the jury’s verdict of assault and battery by means of a dangerous weapon was not unanimous; the judge erred in denying the defendant’s motion for a new trial because the defendant’s trial counsel provided him with ineffective assistance in several respects; and the evidence was insufficient to prove extreme atrocity or cruelty. We affirm the defendant’s convictions and the denial of his motion for a new trial, and after a thorough review of the record, we decline to exercise our power to grant relief under G. L. c. 278, § 33E.

Background. We recite the facts as the jury could have found them at trial, reserving some facts for later discussion.

On the afternoon on May 15, 2002, at about 3 p.m., Andujar, who was at the time a heroin user, woke up and injected three bags of heroin.3 She was with Strange, her boy friend. Strange received a telephone call from the defendant, a friend of both Andujar and Strange whom they had known for a year. The defendant told Strange that he had figured out that Strange had not stolen a stereo from the defendant’s sister, and he was no longer upset with Strange. The defendant, who was at 833 Main Street in Worcester, invited Strange and Andujar over because he had heroin. They decided to go.

[839]*839That same afternoon, Petra Moreno arrived at her apartment on the third floor of 833 Main Street to find signs of a break-in and two men, including the defendant, standing on the third-floor porch. The defendant identified himself as the brother of Moreno’s next-door neighbor and told Moreno that someone called “Gucci,” a nickname by which Strange was known, had broken into the neighbor’s apartment and probably had broken into Moreno’s apartment. The defendant said, “We’re going to take care of it.”

After Strange’s telephone conversation with the defendant, Andujar’s mother drove Andujar and Strange to the comer of Main Street and Allen Street. Andujar and Strange walked to the parking lot of 833 Main Street, looked up, and saw the defendant standing on the third-floor porch with another person, Eliezer Herrera. The defendant motioned for Andujar and Strange to climb the steps. When they reached the second-floor landing, Strange ascended the first two steps to the third floor in front of Andujar, and as Andujar looked down to take her first step, she heard a gunshot and looked up to see the defendant shooting at them. Strange jumped back off the steps, jumped in front of Andujar, pushed her to the side, took two steps, and then fell after another shot. Andujar looked up and saw the defendant smile, then frown, and ran out of sight. Strange was lying on the porch, nonresponsive, with his eyes open and blood pooling around his head. Strange sustained a total of four gunshot wounds, including a fatal wound to his head, and a bullet grazed Andu-jar’s right shoulder. Andujar then ran down the steps and up the hill to her mother’s vehicle.

About twenty minutes after Moreno spoke with the defendant on the porch, she heard between three and five gunshots. Moreno ran outside and saw a body on the second-floor porch and then saw Andujar running along Allen Street.

The defendant’s trial occurred in January, 2004, and he timely filed a notice of appeal from his convictions. While the defendant’s appeal was pending in this court, the defendant, represented by new counsel, filed a motion for a new trial on December 21, 2009. The motion judge, who was also the trial judge, denied the motion in a comprehensive memorandum of decision in August, 2011. The defendant timely appealed, and his consoli[840]*840dated appeals from his convictions and the denial of his motion for a new trial are now before this court.

Discussion. When this court reviews a defendant’s appeal from the denial of a motion for a new trial in conjunction with his direct appeal from an underlying conviction of murder, we review both under G. L. c. 278, § 33E. See, e.g., Commonwealth v. Gomez, 450 Mass. 704, 711 (2008). In conducting our review, “[w]e extend special deference to factual determinations made by a motion judge who also was the trial judge, as here.” Commonwealth v. Leng, 463 Mass. 779, 781 (2012), citing Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

1. Witness claim of Fifth Amendment privilege. At a hearing on the parties’ pretrial motions on January 16, 2004, the judge reviewed the Commonwealth’s proposed application for a grant of immunity pursuant to G. L. c. 233, § 20E, for the witness Eliezer Herrera, whom the defendant argued was the shooter. The judge concluded that the hearing on the Commonwealth’s immunity application could not take place then because the prosecutor had not notified the Attorney General or other district attorneys of the application, as required by G. L. c. 233, § 20E (d). The judge decided instead to determine later that day whether the proposed witness had a valid basis for a claim of Fifth Amendment privilege, and to hear the full immunity application at a later point in time, after the Commonwealth had satisfied the notice requirements. Thereafter, during the same January 16 hearing, counsel for Herrera, citing Commonwealth v. Martin, 423 Mass. 496 (1996), requested that a voir dire of Herrera be conducted in camera to assess the witness’s claim of privilege. Over defense counsel’s objection to an in camera voir dire of “a potentially devastating witness like Mr. Herrera,” the judge conducted a closed hearing to determine whether Herrera would assert the Fifth Amendment if called to testify and whether such a claim of privilege would be valid. The judge excluded the defendant and defense counsel from the hearing but permitted the prosecutor to attend. At the end of the hearing, the judge found that Herrera had validly invoked his Fifth Amendment privilege “based on [the judge’s] understanding of Mr. Herrera’s involvement in the case . . . , the facts and circumstances [841]*841giving rise to a shooting and resulting in charges against [the defendant], and bearing in mind Mr. Herrera’s pending legal cases in the Worcester District Court. . . ,”4 The judge initially impounded the portion of the transcript reflecting the content of this hearing, but later made it available to the parties at the request of the defendant’s appellate counsel. Nothing in the record indicates that the Commonwealth pursued further an immunity application for Herrera; in any event, Herrera was not called as a witness.

The defendant claims that Herrera was actually a defense witness and argues that the judge erred in depriving the defendant of Herrera’s testimony by concluding that Herrera had a right not to testify.

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Cite This Page — Counsel Stack

Bluebook (online)
985 N.E.2d 1197, 464 Mass. 837, 2013 WL 1459256, 2013 Mass. LEXIS 172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-alicea-mass-2013.