Commonwealth v. Bins

465 Mass. 348

989 N.E.2d 404

COMMONWEALTH

v.Jeremais BINS.¹

SJC–10864.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 5, 2012.

Decided June 5, 2013.

Jeffrey L. Baler for the defendant.

Fawn D. Balliro Andersen, Assistant District Attorney (Lee Hettinger, Assistant District Attorney, with her) for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, DUFFLY, & LENK, JJ.

LENK, J.

On May 20, 2006, the defendant beat his wife and eleven year old stepson to death with a hammer. He turned himself in and made a long statement to police in his native Portuguese. The statement was translated contemporaneously by an officer who was fluent in both Portuguese and English. Over the defendant's objection, and following a hearing on his motion to suppress the statement, before a judge who was not the trial judge, the statement was introduced in evidence at the defendant's trial in the Superior Court. The jury found the defendant guilty of two indictments charging murder in the first degree based on the theory of deliberate premeditation.

The defendant claims that his statement to police should have been suppressed because its admission violated his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. He maintains also that certain out-of-court statements were admitted improperly under the state of mind exception to the rule against hearsay; that the prosecutor misstated the law of premeditation and misused the aforementioned out-of-court statements in his closing argument; and that the judge erred in denying his request for a voluntary manslaughter instruction. We reject the defendant's claims and, after review of the entire record pursuant to our obligation under G.L. c. 278, § 33E, decline to exercise our authority to order a new trial or to reduce the defendant's convictions to a lesser degree of guilt.

1. Facts. a. The killings. We recite the facts the jury could have found, reserving some facts for later discussion. The defendant met Carla Souza in October, 2004, at the Mormon Church in the town of Weston. Both Souza and the defendant were Brazilian immigrants. They began dating, and in April, 2005, they married. The couple lived in Framingham with Caique, Souza's son from a previous marriage. Although Souza and the defendant were initially happy, they soon began experiencing problems in their relationship. First, Souza was a devout Mormon, and the defendant was unsupportive of her church activities. Souza attended church services regularly and hosted Mormon missionaries for meals and meetings in her home several times a week. The defendant felt that the church was controlling his home. Second, Caique did not accept Souza's and the defendant's relationship. Caique would hit Souza and the defendant, or physically put himself between them when they were embracing.

In December, 2005, Souza and the defendant had a son, Felipe. During the course of Souza's pregnancy, she experienced complications that required her to stop working. This put a serious financial burden on the defendant, a carpenter who did not have steady employment. He became irritable; Souza told friends that he was not treating her well. He called Souza a “prostitute” and broke things in their apartment. He wanted Souza to spend less time at church and more time at home. He complained about Souza hosting Mormon missionaries for meals and began suspecting that Souza was romantically involved with the missionaries. He felt that Souza was disobedient. On one occasion, sometime after Felipe was born, the defendant told Souza's brother, who at the time did not consider it a serious threat, “I've been very anxious. I can't put up with this anymore, and if she doesn't stop, I will kill her.”

On the evening of May 20, 2006, the defendant called the missionaries and told them never to come to his home again. He told Souza the missionaries would no longer be welcome in their home, and that Felipe would “never be a Mormon.” Souza became angry, sticking her finger in the defendant's face and pushing him. The defendant took Felipe from his crib and lay down on the bed, holding the baby. Souza tried to take Felipe from the defendant's arms but could not do so, because the defendant was stronger than she. Picking up the telephone, Souza told the defendant that she was going to destroy him, and she telephoned the police. The defendant became “furious.” He felt that he struggled and worked for his family, and that his work was “never appreciated.” He went to the closet and retrieved a large hammer.

As Souza was sitting on the bed, talking to the 911 operator on the telephone, the defendant hit her on the head with the hammer, striking her approximately six times. Caique came into the room, and the defendant struck Caique in the head with the hammer approximately three times. The defendant picked up Felipe and left the apartment. Both Souza and Caique died that night from their injuries.

b. The defendant's statement to police. Approximately one and one-half hours after leaving his apartment, the defendant took a taxi to the Framingham police station and turned himself in. He handed Felipe to the officer who met him inside the station, and stated, in English, “[S]orry.” Because the defendant spoke limited English, Officer Duarte Calvao of the Framingham police department was brought in to interpret. Calvao was born in Portugal and speaks fluent Portuguese.²

While the defendant waited in the booking area of the Framingham police station, Calvao read him the Miranda warnings from a sign posted on the wall where the rights were printed in Portuguese. He asked the defendant to read along. The defendantsaid he could read, and he looked at the sign as Calvao read. As later translated into English by a certified court interpreter, the rights Calvao read were as follows:

“You have the right to remain silent. You have the right to talk to your attorney, to know your opinion before doing any question. Anything that you say could be used against you in the court. If you have no conditions to pay a lawyer, one will be appointed for you before the court....”

“If you decide to answer our questions this moment with no lawyer, you have the right to give up answering questions at any moment you want.” ³

Calvao asked the defendant, in Portuguese, if he understood what Calvao had just read. The defendant nodded in the affirmative. Calvao then read the defendant his statutory rights regarding telephone calls, G.L. c. 276, § 33A, from a form where the rights were printed in continental Portuguese. The defendant signed the form, indicating that he understood those rights, and subsequently made a telephone call.

At approximately 2 a.m., Calvao said to the defendant, in Portuguese, “Come with us,” and the defendant complied.⁴ He was taken to an interview room with Calvao, Detective James Green, and State Trooper William Donoghue. Calvao read the defendant his Miranda rights from a form printed in Portuguese. As later translated into English by a certified court interpreter, the rights Calvao read this time were as follows:

“[H]ave the right to remain silent. Everything you say can be used against itself in court. Have the right to speak to an attorney and have him present during questioning. If you don't have possession of hiring an attorney, you be [either ‘supplied’ or ‘recognized’] before being questioned, and if you decide to answer questions, you have the right to stop when you want.”

Calvao asked the defendant whether he understood his rights, and the defendant said that he did. The defendant signed a copy of the form with the rights printed in Portuguese. Calvao then asked the defendant, in Portuguese, if he was willing to speak about the case, and the defendant said in Portuguese, “[S]orry,” and then in English, “[T]oday, no.” Calvao asked again, in Portuguese, whether the defendant understood his rights. The defendant said that he did, and again stated in English, “I'm sorry.” The interview was then terminated.⁵

Between approximately 2 a.m. and 3 a.m., the defendant was “processed” by the State police crime scene unit, who photographed him, took blood samples from his person, and confiscated his clothing for deoxyribonucleic acid (DNA) testing. During this time, Calvao remained with the defendant to serve as interpreter. At some point during the hour, the defendant spontaneously said to Calvao that he would talk about the case “tomorrow.” Shortly after 3 a.m., the defendant was booked, and Calvao told him, in Portuguese, that he was under arrest and charged with murder.The defendant was placed in a cell for the night.

At approximately 11 a.m., Calvao, Green, and Donoghue went to the defendant's cell and woke him up. They asked if he wanted to talk to them, and he said that he did.⁶ In the interview room, Calvao again read the defendant the Miranda warnings in Portuguese from a printed form. As later translated into English by a certified court interpreter, he stated, “You have the right to remain silent.... Anything you say ... can be used against you in the trial.” The defendant indicated that he understood these warnings. Calvao said, “You have the right to have a lawyer. Do you understand this right?” The defendant asked, in Portuguese, “How do I go about getting a lawyer?”

After conferring with Green and Donoghue, Calvao stated, in Portuguese, “That is a decision that you have to make.” The defendant then asked, “In this statement, is there a way for me to have a lawyer?” Calvao said, “If you want a lawyer,” to which the defendant replied, “I don't have the money to hire a lawyer.” At this point, Calvao said, still in Portuguese,

“I'm going to read the rest, ok? You have the right to have a lawyer ... If you cannot obtain a lawyer the court will point one out to represent you, understand? ... When you go to the court, if you do not have assets the court can...