Commonwealth v. Figueroa

468 Mass. 204

9 N.E.3d 812

COMMONWEALTH

v.Richard FIGUEROA.

SJC–11189.

Supreme Judicial Court of Massachusetts, Essex.

Argued Jan. 10, 2014.

Decided May 19, 2014.

Donald A. Harwood for the defendant.

Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., CORDY, BOTSFORD, GANTS, & DUFFLY, JJ.

GANTS, J.

On the evening of January 31, 2008, the defendant walked into a Lawrence restaurant and shot and killed Luis Alex Alcantara (victim), with whom he had been feuding. A Superior Court jury convicted the defendant of murder in the first degree on a theory of deliberate premeditation, in violation of G.L. c. 265, § 1. On appeal, the defendant raises five claims: (1) that a motion judge erred in denying the defendant's motion to suppress evidence seized during warrantless entries into two apartments; (2) that a different motion judge erred in denying a motion to suppress a showup identification of the defendant; (3) that the trial judge's instruction on proof beyond a reasonable doubt requires reversal of his conviction; (4) that the judge erred in instructing the jury on intoxication; and (5) that the judge erred in furnishing the jury with an instruction in accordance with Commonwealth v. Rodriquez, 364 Mass. 87, 101–102, 300 N.E.2d 192 (1973), and Commonwealth v. Tuey, 62 Mass. 1, 2–3 (1851) ( Tuey– Rodriquez instruction), limited to their consideration of murder in the first degree, in response to a note from the jury asking whether they were a “hung jury” because some jurors “feel it is first degree, some feel it is second degree.” The defendant also contends that we should exercise our authority under G.L. c. 278, § 33E, to reduce the conviction to a lesser degree of guilt more consonant with justice. We reject the defendant's first four claims of error, but conclude that the judge erred in giving the Tuey- Rodriquez instruction, and that the error created a substantial likelihood of a miscarriage of justice with respect to the jury's decision to convict the defendant of murder in the first degree rather than murder in the second degree. We therefore reverse the defendant's conviction of murder in the first degree, and remand the case to the Superior Court to allow the Commonwealth to choose between entry of a verdict of murder in the second degree or retrial of the defendant on the charge of murder in the first degree.

Background. Defense counsel in his opening statement said that the issue at trial was not whether the defendant shot and killed the victim (the defendant would testify that he did) but whether he was so intoxicated that he could not have formed the intent to kill or to deliberately premeditate the killing. Therefore, we summarize the evidence at trial, focusing on the evidence regarding the defendant's intent and reserving certain details for our discussion of the circumstances surrounding the two searches and the showup identification.

The victim owed the defendant $1,300 for marijuana that the defendant had sold him, and the defendant owed the victim $1,050 because another buyer that the defendant had referred to the victim had failed to pay the full purchase price.¹ The defendant told the victim that they should “call it even,” but the victim refused and insisted on receiving the money due to him. The defendant paid the victim $500, but the victim “kept insisting” on being paid the balance, and the two argued about the debt on several occasions prior to the shooting. The last time they crossed paths before the shooting was in mid-January, 2008, when the defendant and Nancy Alon (whom the defendant described as “a special friend” in his testimony at trial) were at a restaurant in Lawrence. The defendant saw the victim and invited him to join them at their table. After the victim touched Alon several times on the leg, the defendant told him, “Please stop disrespecting me.” The victim told the defendant that if he did not like it, they could “go to the bathroom and resolve the problem there.” At the entrance to the bathroom, the victim, with a hard object in his hand, struck the defendant in the nose and continued striking him. The victim pushed the defendant against the wall and began choking him. According to the defendant's testimony, the victim “was killing” him when someone pulled the victim away. When the restaurant manager escorted the defendant out of the restaurant, the defendant told him “everything was fine” but that “things [were] not going to stay that way.”

Approximately four days before the shooting, Engels Baez visited the defendant and noticed that the defendant's face was bruised. The defendant showed Baez a gun and a box with ammunition inside. Baez encouraged the defendant to “throw [the box of ammunition] away,” and tried to take the gun away from him, but the defendant told him to “leave it alone.”

On the evening of the killing, a taxicab driver was dispatched to a restaurant in Lawrence, where the defendant entered the taxicab, said he was drunk, and asked to be taken to a Lawrence bar. As he was being dropped off, the defendant told the driver that he was going to call back for a ride in a few minutes.

The defendant did not enter the bar where he was dropped off but instead, at approximately 9:30 p.m., entered a nearby restaurant, said either “look” or “look what I got for you,” and with a .357 caliber revolver fired two or three shots at the victim. The bullets struck the victim, who was seated at a table, in the leg and chest, killing him. The defendant then fled the restaurant.

After making a loop around the block, the same taxicab driver who had dropped the defendant off less than five minutes earlier saw the defendant hailing him, picked him up, and, at the defendant's direction, drove him to a two-family house at 59–61 Salem Street in Lawrence. At approximately 9:50 p.m. that night, the defendant telephoned Baez, told Baez that he “killed the guy who had beat him up,” and asked for a ride, but then hung up the telephone before telling Baez where he was.

The defendant testified that he was a “cocaine addict,” and, on the day of the killing, “did [cocaine] twice in the house before leaving” at around noon. Later that afternoon, he drank a bottle of rum, mixed with an energy drink, at an upholstery store while waiting for a friend.² He then went to a restaurant and drank two or three glasses of wine, as well as two more glasses of rum, mixed with an energy drink, and did two “passes” of cocaine. He walked to a different restaurant, where he drank wine for approximately ninety minutes and “did cocaine twice in the bathroom.” He then took a taxicab to a bar, where he intended to play pool. Rather than visit that bar, he decided to walk to another nearby restaurant to see a friend who worked there. When he entered that restaurant, he saw the victim standing “as if ... walking towards” him, at which point, the defendant testified, “I panicked and I shot him.”

Discussion. 1. Motion to suppress evidence seized at 59–61 Salem Street. On the night of the killing, the police entered the upstairs apartment at 59 Salem Street without a warrant, where they arrested the defendant in a third-floor bedroom and seized ammunition from a blue duffel bag in that bedroom. The next morning, the police entered the first-floor apartment at 61 Salem Street without a warrant and seized a gun. Before trial, the defendant moved to suppress the evidence seized as a result of these two warrantless entries. The judge denied the motion. The judge concluded that the warrantless entry into the upstairs apartment was constitutionally reasonable because of exigent circumstances and that the search of the blue duffel bag was a lawful search incident to arrest.³ With respect to the entry the following day, the judge concluded that the defendant had no reasonable expectation of privacy in the first-floor apartment, and, thus, had no standing to challenge the constitutionality of the search of that apartment.

“In reviewing a motion to suppress, ‘we accept the judge's subsidiary findings of fact absent clear error’....” Commonwealth v. Pacheco, 464 Mass. 768, 769, 985 N.E.2d 839 (2013), quoting Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004). We may supplement those findings “if the evidence is uncontroverted and undisputed and where the judge explicitly or implicitly credited the witness's testimony.” Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007), S.C.,450 Mass. 818, 882 N.E.2d 328 (2008), and cases cited. We “independently determine the correctness of the judge's application of constitutional principles to the facts as found.” Commonwealth v. DePeiza, 449 Mass. 367, 369, 868 N.E.2d 90 (2007), quoting Commonwealth v. Catanzaro, 441 Mass. 46, 50, 803 N.E.2d 287 (2004).

a. Subsidiary finding of facts. After an evidentiary hearing, the motion judge made the following findings of fact, which were not clearly erroneous. The Lawrence police department responded to the shooting at the restaurant at approximately 9:30 p.m., and found a man who had been shot being treated by paramedics. Witnesses at the restaurant provided a general description of the shooter. The police learned that a taxicab driver had driven a man who matched the general description of the shooter from a bar to a location approximately one-half block from the restaurant where the shooting occurred. This man told the driver that he would call back in a few minutes to be picked up again. After the driver made a loop around the block, the same man flagged him down and asked to be driven to 59 Salem Street. The man was picked up “around the time of the shooting.” The taxicab stopped almost immediately at a red light, and the man told the driver to run it. When the driver refused to do so, the man spat on the floor of the taxicab several times in protest. The driver dropped the man off at 59 Salem Street and saw him walk down the driveway, which led...