Commonwealth v. Echavarria

703 N.E.2d 1137, 428 Mass. 593, 1998 Mass. LEXIS 710
CourtMassachusetts Supreme Judicial Court
DecidedDecember 22, 1998
StatusPublished
Cited by18 cases

This text of 703 N.E.2d 1137 (Commonwealth v. Echavarria) 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. Echavarria, 703 N.E.2d 1137, 428 Mass. 593, 1998 Mass. LEXIS 710 (Mass. 1998).

Opinion

Fried, J.

The defendant, Angel Echavarria, was convicted of murder in the first degree on a theory of deliberate premeditation. His principal claims relate to the sufficiency of the evidence, particularly as it bears on the identity of the defendant as a perpetrator of the crime, the procedure employed to procure [594]*594a pretrial identification, and the instructions regarding his presence at the scene of the crime.1

I

The defendant and another man2 gained entrance to an apartment from which drugs were sold. While they were in the apartment Isidoro Rodriguez, who lived in the apartment at the time, and his brother Daniel Rodriguez, the victim, returned from a restaurant. As Daniel and Isidoro approached the apartment Isi-doro heard the volume on the television set inside turned up very high. On entering they were confronted by the defendant and another man, both of whom were armed and unknown to Isidoro. Daniel turned to run and one of the two armed men went after him. Having brought Daniel back, the two armed men forced Daniel and Isidoro to the floor. The defendant tied Isidore’s hands, told Isidore not to look at him, marched him into a bedroom, ordered him to lie on the floor, and threw a shirt over his face. On the way to the bedroom Isidoro saw the feet of several people lying on the floor in another room. Daniel remained behind. Less than one minute later Isidore heard a “knocking sound” from the direction of the bathroom. He struggled to untie himself and saw several people, one of whom he knew and who was staying with him in the apartment, hurry from the apartment. The noise from the television was still at a high volume. Isidore found Daniel, bound hand and foot, in the bathroom. He had been shot twice in the head, apparently at close range and through a pillow that had been used to muffle the noise of the shots.

Isidore, who does not speak English, was the principal witness for the prosecution. Shortly after the killing he had picked out a person, who was not one of the men, from a photographic array, saying that he looked like one of them. Several days later he saw the defendants in a barber shop in the neighborhood, but, before he could summon a friend who spoke English, the two men had left. He saw the men again a short time later in a nearby restaurant. This time Isidoro and his friend got to a [595]*595police station in time to have police officers make contact with the two defendants, and eventually arrest warrants were obtained, and the two were arrested.

A second person, Gary Sevinor, testified that he had come to the apartment on the day of the killing, as he had on other occasions, to buy drugs. While he was there two men with guns forced him to lie on the floor, tied him up, and dragged him to a closet in a bedroom. They took his watch, keys, and wallet. Shortly thereafter, Sevinor said he heard “the music go up,” and then he heard two shots. When someone untied him, Sevi-nor quickly left the apartment. Although Sevinor said nothing to the police when he read about the killing in the newspaper, one year later while awaiting trial on unrelated matters he was contacted by the police and spoke to them about his knowledge of the killing. He identified the defendant from the same photographic array shown Isidoro, although when shown a photocopy of the array he indicated some level of uncertainty.

At the trial both Isidoro and Sevinor identified the defendant as one of the two armed men who had bound them and who had appeared to be in command during the events in the apartment.

n

A

The defendant makes claims before this court that relate in one way or another to his identification as one of the two armed men present in the apartment during the events to which Isidoro and Sevinor testified.

Most fundamentally, the defendant argues that Isidoro was not competent to testify. He apparently could not tell time, did not know what city he was in, had difficulty expressing judgments of distance in feet, did not know what year it was, and showed other such failings. The defendant claims that in light of these deficiencies his trial counsel should have moved for a voir dire on Isidore’s competence to testify, and that his failure to do so constituted ineffective assistance. Isidoro was subjected to one and one-half days of intense cross-examination. Although he certainly exhibited the failings pointed out now by the defendant, and these were made evident to the jury as well and emphasized by counsel in his cross-examination and in his clos[596]*596ing argument, our examination of the record leads us to conclude that Isidoro was far from failing the not very stringent test of competence we have set forth: that the witness have “the general ability or capacity to ‘observe, remember and give expression to that which [he] ha[s] seen, heard, or experienced,’ ” and that he have “understanding sufficient to comprehend the difference between truth and falsehood.” Commonwealth v. Trowbridge, 419 Mass. 750, 754 (1995), quoting Commonwealth v. Brusgulis, 398 Mass. 325, 329 (1986). What appears from the record is that Isidoro was an illiterate man, recently arrived in this country, not speaking any English, who had received little or no formal education. But this does not mean that he was unable to observe and report on the events that were the subject of his testimony. Defense counsel made what use he could of these circumstances. Because there was an insufficient basis to exclude Isidore’s testimony on the ground of incompetency, counsel was not ineffective in failing to call for a voir dire on this score.

The defendant also argues that Sevinor’s pretrial identification of the two codefendants from photographic arrays should have been suppressed as unduly suggestive. The defendant did make a motion to this effect, which the judge denied, stating that the photographic arrays used by the police were assembled “with a circumspect eye and appear impartial,” and concluding that the procedures used “were not unduly suggestive.” The judge articulated the correct standard, placing on the defendant the burden of proving that the identification procedures were “ ‘so unnecessarily suggestive and conducive to irreparable mistaken identification’ as to deny the defendant due process of law.” Commonwealth v. Venios, 378 Mass. 24, 27 (1979), quoting Stovall v. Denno, 388 U.S. 293, 302 (1967). See Commonwealth v. Johnson, 420 Mass. 458, 463 (1995). His subsidiary findings of fact are not to be disturbed, absent clear error. Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990), and cases cited. We have examined the array ourselves and see no reason to differ from the judge’s conclusion.

The defendant’s trial counsel did not move to suppress Isi-dore’s several identifications of the defendant, and the defendant now claims that this constituted ineffective assistance of counsel. The focus of the claim is that the police delayed about one month before showing Isidore the same photographic array later shown to Sevinor and that they waited another month to conduct [597]*597a lineup, at which Isidoro identified the defendant. The claim is entirely without merit. Isidoro saw the man who tied him up and marched him away over a period of minutes.

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Bluebook (online)
703 N.E.2d 1137, 428 Mass. 593, 1998 Mass. LEXIS 710, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-echavarria-mass-1998.