Colon v. Healey

DENNIS COLON, Petitioner, v. MAURA T. HEALEY, Respondent.

Civil Action No. 21-cv-10092-ADB

United States District Court, D. Massachusetts

August 31, 2021

MEMORANDUM AND ORDER

ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE

In June 2012, an Essex County jury convicted Petitioner Dennis Colon of first degree murder, armed burglary, and assault and battery by means of a dangerous weapon. He was subsequently sentenced to life without the possibility of parole. On January 19, 2021, after the Massachusetts Supreme Judicial Court (“SJC”) affirmed both his conviction and the trial court's denial of his motion for a new trial Commonwealth v. Colon, 133 N.E.3d 306, 322 (Mass. 2019) Colon petitioned Respondent Maura T. Healey (“Respondent”) for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, [ECF No. 1].^[1] For the reasons set forth below, Colon's petition is DENIED.

I. FACTUAL BACKGROUND

The SJC provided a factual summary of the case, which the Court adopts in relevant part below.^[2]

A. The Shooting^[3]

At approximately 4:30 A.M. on May 22, 2009, intruders broke into the victim's house while the victim and his girlfriend, Tori, ^[4] were asleep. Tori awoke to find the victim sitting up in bed and two men standing at the edge of the bed, pointing guns at her and the victim. The men wore sunglasses and hats that obscured their faces. Although Tori did not recognize either man, she thought that one of them might have been a man she knew as “PS, ” to whom the victim twice had sold marijuana. Tori believed the other man was approximately five feet, six inches tall, roughly the same height as [Colon].

Tori screamed, “Please, don't shoot, don't shoot.” The victim could not see what was happening, as he was blind, and began waving his hands. A gun went off, and the victim fell on top of Tori. The men left. Tori testified that she saw the two men for a total of approximately five minutes.

A projectile from a .380 semiautomatic weapon had entered the victim's head on the left side and fragmented in at least two different directions. The victim was transported to a hospital, where he was pronounced dead at 11:25 P.M. The cause of death was a single gunshot wound to the head. A portion of the bullet passed through the victim's head and into Tori's chin, breaking her jaw. Two permanent metal plates had to be installed in Tori's jaw to hold the jaw together.

Colon, 133 N.E.3d at 311.

B. The Interrogations

On June 22, 2009, while Lawrence police were investigating a separate incident involving a burglary, they encountered [Colon] and found a Beretta firearm on his person.^[5] [Colon] was arrested for possession of a firearm without a license, and was transported to the Lawrence police station.

That evening, [Colon] was interrogated at the Lawrence police station in two separate interviews that took place approximately one hour apart. He said nothing inculpatory related to this offense during these two interviews, and no testimony was introduced at trial concerning [Colon's] statements on the evening of his arrest.

During the first interview, [Colon] asked detectives if he “could see” his girlfriend, Giana.^[6] At that point, Giana was at the police station in a different room. Giana, who was four months pregnant with twins, had come to the police station voluntarily to provide police information that she thought would help [Colon], concerning the gun that police had found on his person. In response to [Colon's] request, one detective said, “[A]ctually she's not going to be able to come down. All right? But I'll let you call her. All right?”

According to a police report, while [Colon] was in the booking room after his first interview, a detective asked a fellow officer to tell Giana, who was upstairs, to call the officer's cellular telephone. When Giana called, the officer handed the telephone to [Colon], who spoke with Giana. Subsequently, [Colon] spoke with police for ten minutes, and the interview then concluded at 5:41 P.M.

The following day, on June 23, 2009, while [Colon] was being held in a cell at the Lawrence Division of the District Court Department, he requested to speak with a police officer whom he recognized. At approximately 9:30 A.M., [Colon] was interviewed by two officers. According to police testimony, [Colon] waived his Miranda rights, consented to the interview being recorded, and waived his right to prompt arraignment. [Colon] signed forms associated with each of these waivers, as well as his consent to the recording. The period during the issuance of the Miranda warnings and the receipt of [Colon's] waivers, however, was not recorded. In this interview, [Colon] told police that he had participated in the break-in that led to the victim's death. [Colon] admitted to having broken into the victim's apartment, along with individuals he identified as “Limbe, ” “Smokey, ” “PS, ” and “Dezi, ” with the intent to steal money and marijuana. [Colon] said that he saw a dog in the apartment;^[7] as he was afraid of dogs, he stayed in the hallway to serve as the lookout. He concluded by saying that someone other than he had fired a shot inside the apartment from a .380 weapon.

In January 2011, [Colon's] first attorney^[8] moved to suppress [Colon's] inculpatory statement to police.^[9] The motion was denied after an evidentiary hearing. In his written findings of fact and rulings of law, the motion judge determined that [Colon] had been questioned by police at the Lawrence police headquarters on June 22, 2009, shortly after his arrest, for approximately thirty to forty-five minutes. The judge found that, the following day, [Colon] initiated contact with police, while being held in the cell block area of the District Court in Lawrence. An officer read [Colon] Miranda warnings before turning on a tape recorder. [Colon] was “eager” to speak with police. The officer described him as “clear-headed, and not under the influence of alcohol, drugs, or mental illness.” The judge determined that the emotion [Colon] displayed was “appropriate to the situation, ” and concluded that [his] “statements were voluntary and preceded by adequate Miranda warnings.”^[10] [Colon's] trial counsel filed a motion for reconsideration, which was denied. After trial began about one week later, counsel moved in limine to exclude [Colon's] statement of June 23, 2009. The trial judge deferred to the motion judge's ruling and denied the motion.

Colon, 133 N.E.3d at 311-13 (some alterations in original).

C. The Trial

Before the jury were sworn, trial counsel moved to exclude testimony by [Colon's] girlfriend, Giana, with respect to statements she made at the Lawrence police station on June 22, 2009. The Commonwealth had intended to call Giana as a corroborating witness, and possibly as a witness to show intent for the underlying felony. Defense counsel explained that Giana sought to claim a privilege under the Fifth Amendment to the United States Constitution, because information that she gave police that inculpated [Colon] purportedly was false. Counsel also moved to exclude Giana's statements on the ground of asserted police coercion.

The judge conducted a voir dire of Giana. Giana said that while she was being questioned, a police officer threatened her by telling her that if she did not inculpate [Colon], she would go to prison and give birth there, and that she would never see her twins again. Giana's son, who had come to the police station separately, was brought into a room where he met briefly with his mother, who was crying.

The judge determined that “the police may have played upon [Giana's] emotions -to a certain extent - but I do not find that all of [Giana's] testimony is credible.” The judge explained that Giana had provided a “demonstratively false” statement that she had been given Miranda warnings only as she was walking out the door. The judge also noted that the police report describing Giana's interview “doesn't even go into a fair amount of what she claims was asked her at the police station.” The judge denied the motion to exclude Giana's statements. He observed that, “plainly, the defense is entitled to bring these matters up to the jury, ” and left “it to the Commonwealth as to whether they want to open up this can of worms before the jury.”^[11] Neither the Commonwealth nor the defense ultimately called Giana to testify at trial. As a result, any information inculpatory to [Colon] that Giana might have provided to police was not presented to the jury.

[Colon's] statements from the morning of June 23, 2009, were the heart of the Commonwealth's case. In addition, the Commonwealth presented testimony of an inmate, Alvin Rivera, who testified against [Colon] pursuant to a cooperation agreement. Rivera's testimony suggested that [Colon] actually shot the victim, rather than serving as lookout.

Rivera testified that, while detained at the Middleton house of correction in the summer of 2009, [Colon] told him that [Colon] and others, known as “Smokey, ” “Limbe, ” and “PS, ” went to the victim's house on the night of the shooting in search of marijuana and money. Rivera testified that Smokey handed [Colon] a .380 weapon and PS a Beretta. According to Rivera, [Colon] told him that Smokey stood in the hallway as lookout while [Colon] and PS went into the apartment and made their way to the bedroom where the victim and Tori were sleeping. Rivera testified that, when [Colon] noticed the victim moving, [Colon] got “nervous” and fired a single shot before running from the apartment. [Colon] told Rivera that he had sold the .380 but not the Beretta. [Colon] said that if anyone questioned him about the shooting, he would say that he had been the person who stood outside as a lookout. [Colon] told Rivera that [Colon] and three other individuals previously had broken

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