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SJC-11670

                 COMMONWEALTH   vs.   MARIO CRUZADO.



            Suffolk.    May 11, 2018. - August 10, 2018.

   Present:    Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.


Homicide. Evidence, Videotape, Admissions and confessions,
     Inflammatory evidence, Motive, Hearsay, Cross-examination.
     Practice, Criminal, Capital case, Admissions and
     confessions, Hearsay, Assistance of counsel.
     Constitutional Law, Assistance of counsel, Search and
     seizure, Probable cause. Search and Seizure, Probable
     cause, Exigent circumstances.



     Indictment found and returned in the Superior Court
Department on June 24, 2011.

     The case was tried before Linda E. Giles, J., and a motion
for a new trial, filed on July 1, 2016, was considered by her.


     Ruth Greenberg for the defendant.
     Colby M. Tilley, Assistant District Attorney, for the
Commonwealth.


    BUDD, J.    On November 26, 2010, the day after Thanksgiving,

Frederick Allen, III, was found dead in his home.      The

defendant, Mario Cruzado, was convicted of murder in the first
                                                                      2


degree in connection with the killing.    In this consolidated

appeal from the judgment of conviction and from the denial of

his motion for a new trial, the defendant argues that errors

committed by his counsel and by the judge require a reversal of

his conviction.    Upon review, we affirm and decline to reduce or

set aside his conviction under G. L. c. 278, § 33E.

    Background.     We summarize the facts the jury could have

found, reserving certain details for discussions of the issues.

    On the day before Thanksgiving in 2010, the victim's boy

friend, Jaime Hernandez, encountered the defendant, a former

acquaintance, and brought him to the victim's apartment in

Chelsea.    The three spent time drinking; later that morning,

Hernandez left the defendant at a bus stop.     When Hernandez

returned to the victim's apartment, he argued with the victim

over the whereabouts of the victim's cellular telephone (cell

phone).    As a result, Hernandez left the apartment and did not

return.    Two days later, the victim's body was discovered.     An

autopsy revealed that the cause of death was strangulation and

blunt force trauma to his head.

    Eleven days later, Hernandez reported to police that he had

twice encountered the defendant, and that each time the

defendant had made incriminating statements about the victim's

death.     During the first encounter, Hernandez reported that when

Hernandez refused to give the defendant a cigarette, the
                                                                       3


defendant threatened to choke Hernandez like he had choked the

victim.    The second incident occurred the next day, when

Hernandez overheard the defendant, who was in an apartment

building speaking on a cell phone.    In a blend of Spanish and

English, the defendant used the word "belt" and "mentioned . . .

ha[ving] his arm around somebody's neck."

    Hilda Matiaz, the defendant's former girl friend, told

investigators that the defendant telephoned her and told her the

following.   The defendant visited an African-American man's

apartment in Chelsea.    The defendant showered, fell asleep, and

woke to the man touching the defendant's testicles.    The

defendant fought the man and said he was "not a fag[g]ot."       The

defendant put the man in a headlock, and the man fell to the

floor.    The defendant then put on his clothes and left the

apartment.

    Discussion.     The defendant contends that several errors

require reversal.    First, he challenges the trial judge's

admission of portions of a video recording of an interview

between police and the defendant.    Second, he claims it was

error for the judge to allow Hernandez to testify regarding the

argument that Hernandez had with the victim.    Third, he contends

that he was improperly precluded from questioning Matiaz about

whether she was a drug dealer.    Fourth, he appeals from the

denial of his motion for a new trial on the ground that his
                                                                        4


counsel was constitutionally ineffective for failing to file a

motion to suppress.    Finally, he asks this court to reverse his

conviction or reduce his verdict pursuant to G. L. c. 278,

§ 33E, on the ground that the Commonwealth presented no physical

evidence of his guilt.     We address each claim in turn.

    1.    Defendant's recorded police interview.    The defendant

argues that portions of a recorded police interview were

admitted in error.    In portions of the video recording played

for the jury, State police troopers asked the defendant whether

he knew the victim.   When asked whether the defendant knew the

victim by either of his nicknames, the defendant responded,

"No."    Later, after the police showed a photograph of the victim

to the defendant, the defendant and the troopers had the

following exchange:

    Q.: "I'm going to show you a picture of a guy.          See if
    you've ever seen this guy before."

    A.:    "Who's that?"

    Q.: "I'm asking you. Isn't this -- I'm asking you.           Have
    you ever seen this guy before? Yes or no?"

    A.:    "Who the fuck is that?   Just a guy?"

    Q.: "No, listen to me. Listen to me.        Have you ever seen
    this guy before? Yes or no?"

    A.:    "He looks like a nigger to me."

    Q.:    "Have you ever seen this guy before?"

    A.:    "He looks like a nigger to me."
                                                                      5


    Q.:   "Have you ever seen this guy right here before?"

    A.:   "He looks like a nigger to me.    No.   He's black."

    Q.:   "No.   It's a yes or no question."

    A.:   "He's black."

    . . .

    Q.:   "Yes or no?"

    A.: "Where the fuck I've ever seen him?       I don't know that
    mother fucker."

    Although an opposing party's statements are generally

admissible against him or her, see Commonwealth v. Spencer, 465

Mass. 32, 46 (2013); Mass. G. Evid. § 801(d)(2)(A) (2018), the

defendant contends that admission of these portions of the

videotaped interview was error.    We disagree.

    a.    Defendant's denials.    "It is well established . . .

that if the extrajudicial statement by a criminal defendant is

an unequivocal denial of an accusation, it, and the accusation

it denies, are inadmissible."     Spencer, 465 Mass. at 46.   The

defendant argues that, for this reason, portions of the video

recording in which he denied knowing the victim were

inadmissible.

    However, the questions regarding the defendant's

familiarity with the victim were not accusations of guilt; that

is, the question whether the defendant knew the victim was not

directly tied to the defendant's culpability.     Compare
                                                                    6


Commonwealth v. Womack, 457 Mass. 268, 272 (2010) (defendant's

responses to assertions that defendant committed crime

improperly admitted at trial).     Because the questions

investigators posed regarding whether he recognized or knew the

victim did not accuse him of criminal activity, the defendant's

statements denying that he knew the victim were properly

admitted.

       b.   Evidence of racial animus.    The defendant also

challenges the admission of portions of the interview in which

he refers to the victim as "a nigger," arguing that the

reference was irrelevant and unduly prejudicial.      Again, we

discern no error.

       Although the prosecution is not permitted to introduce

evidence of a defendant's bad character to show his or her

"propensity to commit the crime charged, . . . such evidence may

be admissible if relevant for some other purpose," including

motive.     Commonwealth v. Howard, 469 Mass. 721, 738 (2014),

quoting Commonwealth v. Helfant, 398 Mass. 214, 224 (1986).

       The defendant was accused of killing a gay African-American

man.    The Commonwealth offered the evidence to show the

defendant's animus toward African-Americans, and thus as a

partial motive for the killing.    See Commonwealth v. Bishop, 461

Mass. 586, 596-597 (2012) (statement suggesting racial animus

properly admitted to show motive).       See also Commonwealth v.
                                                                     7


Carlson, 448 Mass. 501, 508-509 (2007) (although motive is not

essential element of murder in first degree, evidence of motive

may be relevant to malice or intent).   Concluding that "the

Commonwealth is entitled to elicit the fact that [the defendant]

could have been enraged, not just because he was allegedly

touched by this gay man, but he was allegedly touched by an

African-American man," the judge did not abuse her discretion in

determining that the probative value of the evidence outweighed

its prejudicial effect.   See Spencer, 465 Mass. at 52 (weighing

of prejudice and probative value left to discretion of trial

judge).

     To mitigate the prejudicial effect of the racial slur,

moreover, the judge conducted an individual voir dire of

potential jurors to eliminate potential bias.1    See Commonwealth

v. Alleyne, 474 Mass. 771, 780 (2016) (discussing use of voir

dire to mitigate prejudice); Commonwealth v. De La Cruz, 405

Mass. 269, 274 (1989) ("when requested, we encourage individual

voir dire as to possible juror prejudice based on ethnic

considerations").   Although the judge did not provide a limiting

instruction, the defendant did not request one.    "[T]here is no


     1 The judge inquired of each prospective juror: "The
defendant is Hispanic; the alleged victim was African-American.
You'll also hear evidence that the defendant allegedly referred
to the alleged victim as a nigger. Do you have any feelings,
based on race, that might affect your ability to be fair and
impartial?"
                                                                    8


requirement that the judge give limiting instructions sua

sponte."   Commonwealth v. Sullivan, 436 Mass. 799, 809 (2002).

"Nor does the lack of a limiting instruction necessarily create

a substantial likelihood of a miscarriage of justice."    Id.    See

Bishop, 461 Mass. at 596-597 (no abuse of discretion despite

lack of limiting instruction on use of word "nigger").2,3

     2.    Admission of argument between Hernandez and victim.

The Commonwealth elicited testimony from Hernandez regarding an

argument Hernandez had with the victim over the whereabouts of

the victim's cell phone after the defendant left.    Hernandez

testified that when he denied having stolen the cell phone, the

victim concluded that the defendant had stolen it.   Hernandez

further testified that, after the argument, Hernandez left the

victim's apartment and did not return.   The defendant claimed at

trial, and again on appeal, that the testimony, which supported

Hernandez's alibi, was hearsay.   We disagree.

     An out-of-court statement not offered for its truth is not

hearsay.   See Commonwealth v. Jenkins, 458 Mass. 791, 793


     2 The defendant's argument that the admission of the word
"nigger" as evidence of racial animus violated his due process
rights is unavailing, as the word came from his own mouth
several times.

     3 Because the evidence was properly admitted, it was also
proper for the prosecutor to comment on it in closing argument.
Prosecutors may argue "based on the evidence and on inferences
that may reasonably be drawn from the evidence." Commonwealth
v. Kozec, 399 Mass. 514, 516 (1987).
                                                                    9


(2011); Commonwealth v. Silanskas, 433 Mass. 678, 693 (2001).

Hernandez's testimony about the argument was not offered to

prove that the defendant stole the victim's cell phone but,

rather, to show that Hernandez and the victim argued, that

Hernandez subsequently left, and why he did not return.     See

Commonwealth v. Perkins, 450 Mass. 834, 844 (2008).    See also

Commonwealth v. Keown, 478 Mass. 232, 246 (2017), cert. denied,

138 S. Ct. 1038 (2018); Commonwealth v. Brown, 474 Mass. 576,

587 (2016).    To ensure that the jury did not use Hernandez's

statements to prove the truth of what they asserted, the judge

instructed the jury on the matter.    See Commonwealth v. Santana,

477 Mass. 610, 622 (2017).    She told the jury that the

Commonwealth was not alleging that the defendant stole the cell

phone in question, and that they should not consider it for that

purpose.    There was no error.   See id.

     3.    Matiaz's cross-examination.   Although the defendant

claimed that he did not know the victim and that he had never

been to the victim's home, the Commonwealth presented evidence

that, on November 24, 2010, five calls were made from the

victim's landline telephone to Matiaz, who was known to the

defendant but not to the victim.4    In an attempt to advance the


     4 The telephone calls were made between 5:57 P.M. and 6:44
P.M., providing strong circumstantial evidence that the
defendant returned to the victim's apartment on the evening of
the victim's death, after Hernandez had left for the last time.
                                                                   10


theory that it was in fact the victim who called Matiaz because

he was seeking illegal drugs, defense counsel sought to question

Matiaz regarding whether she was a drug dealer.    The trial judge

disallowed that line of questioning.    The defendant claims on

appeal that he was improperly precluded from advancing a viable

defense.   The judge did not err.

    A defendant has a right to cross-examine witnesses who

testify against him or her, but that right has limits.

Commonwealth v. Johnson, 431 Mass. 535, 540 (2000).     Those

limits include the requirement that the questions have a

legitimate basis in evidence.    Id.   See Mass. R. Prof. C.

3.4 (e) (1), as appearing in 471 Mass. 1425 (2015) ("A lawyer

shall not . . . state or allude to any matter that the lawyer

does not reasonably believe . . . will not be supported by

admissible evidence . . .").    Accord Commonwealth v. Hart, 455

Mass. 230, 240 (2009).   The judge did not abuse her discretion

by disallowing any reference to the defense's theory that Matiaz

was a drug dealer on the grounds that it was speculative and

without evidentiary support.    The defendant made no proffer that

there was any relationship between Matiaz and the victim.

Further, the only support for the defense theory that Matiaz was

a cocaine dealer was that she had been arrested for possessing

heroin three years prior to the killing.    There is no logical

connection between a 2007 arrest for possession of heroin and
                                                                  11


the defense theory that, years later, Matiaz was known to the

victim as a cocaine dealer.     There was no error.5

    4.   Ineffective assistance of counsel.     Thirteen days after

the killing, Hernandez informed police of incriminating

statements that the defendant made while speaking to a person

later identified as Matiaz.     Hernandez directed police to a

nearby apartment building, where they found the defendant asleep

on a landing; a cell phone was on the floor approximately one

foot away from him.   During questioning at the station, the

defendant claimed that a "crack head" had given the cell phone

to him to use a day prior, but that he did not know the owner's

name or the telephone number.     When confronted with the cell

phone, although he twice claimed it was not his, he also said

that the "dude" left it, responding "no" when police asked

whether the defendant was supposed to return the cell phone.

Ten days later, police sought and received a warrant to search

the cell phone, which led police to contact Matiaz.

    The defendant now claims that his trial counsel was

ineffective for failing to move to suppress the cell phone and




    5  The defendant's related claim that it was a violation of
due process for the prosecutor to exploit the absence of
evidence that was excluded at her request is also unavailing.
The line of questioning prohibited was that Matiaz was a drug
dealer. The prosecutor argued only that Matiaz knew neither the
victim nor Hernandez; she did not address the question whether
Matiaz was a drug dealer. The argument was proper.
                                                                    12


its contents.6   In cases of murder in the first degree, in order

to prevail on a claim of ineffective assistance of counsel due

to a failure to move to suppress evidence, the defendant must

demonstrate both that the motion would have been successful and

that counsel's failure to make the motion created a substantial

likelihood of a miscarriage of justice.   Commonwealth v.

Williams, 453 Mass. 203, 207 (2009), citing Commonwealth v.

Wright, 411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014).

The defendant contends that police seized the cell phone without

probable cause and waited an unreasonable amount of time before

applying for and obtaining a warrant to search its contents, and

that thus a motion to suppress would have been successful.     We

disagree.

     First, we note that, although the cell phone did not belong

to the defendant, he had a possessory interest in it; thus, he

would have had standing to contest its seizure.7   See

Commonwealth v. Fulgiam, 477 Mass. 20, 35-36, cert. denied, 138

S. Ct. 330 (2017) (possessory interest established standing to


     6 The defendant unsuccessfully made the same claim in a
motion for a new trial.

     7 The defendant claims, incorrectly, that the charges
against him grant him automatic standing. Our case law provides
for automatic standing from criminal charges where possession of
the thing seized is an essential element of the crime charged.
Commonwealth v. Montanez, 410 Mass. 290, 301 (1991). Possession
is not an element of murder in the first degree. See
Commonwealth v. Lodge, 431 Mass. 461, 474 (2000).
                                                                  13


challenge search of cell phone even though defendant did not own

cell phone searched).   Indeed, a critical part of the

Commonwealth's theory of the case was that the cell phone was

the defendant's.   See id. at 36.   However, although the

defendant had standing to challenge the seizure of the cell

phone, any such challenge would have failed, as police had

probable cause to seize the cell phone and exigent circumstances

existed to do so without a warrant.    See Commonwealth v. White,

475 Mass. 583, 588 (2016).

    When the police encountered the defendant sleeping in the

stairwell with the cell phone on the floor near his head, they

had information that the defendant and victim had been together

on the day of the murder, and also that Hernandez had recently

overheard the defendant confessing to the murder to an

unidentified person on a cell phone.   This provided ample

probable cause to believe that the cell phone located near the

defendant would contain evidence of the crime.     See Commonwealth

v. Kaupp, 453 Mass. 102, 105-106 (2009).

    Further, exigent circumstances supported the warrantless

seizure:   the risk of someone taking or tampering with the cell

phone.   Left unattended, especially in an area to which many

people had access, the cell phone would have been at risk of

"theft or vandalism."   See Commonwealth v. Daley, 423 Mass. 747,

750 (1996) (discussing impoundment of vehicles).     "With probable
                                                                    14


cause, the police may seize property 'to prevent destruction or

removal of evidence'" before obtaining a search warrant.

Commonwealth v. Gentile, 437 Mass. 569, 573 (2002), quoting

Commonwealth v. Taylor, 426 Mass. 189, 195 (1997).     See Riley v.

California, 134 S. Ct. 2473, 2486 (2014) (discussing risk of

data being deleted from cell phone); Kaupp, 453 Mass. at 106.

     Given the defendant's possessory interest in the cell

phone, we next consider the reasonableness of the ten-day delay

from the police's seizure of the cell phone to their application

for a warrant to search it.8

     Although police are permitted to hold a seized item for

"the relatively short period of time needed . . . to obtain a

search warrant," they must "release the item if a warrant is not

obtained within that period."    White, 475 Mass. at 593, quoting

Gentile, 437 Mass. at 573.     We have said that there is no

bright-line rule that demarcates when a delay is unreasonable.

White, supra.   Instead, we analyze each case by its own facts,

"balanc[ing] the nature and quality of the intrusion on the

individual's [interests under the Fourth Amendment to the United

States Constitution] against the importance of the government

interests alleged to justify the intrusion."     Id. at 593-594,

quoting United States v. Place, 462 U.S. 696, 703 (1983).

     8 Contrary to the Commonwealth's argument, it is not at all
clear that the defendant intended to abandon the cell phone at
the police station.
                                                                      15


       Here, the defendant's minimal possessory interest was far

outweighed by the government's interest in obtaining evidence

regarding a recent murder.9      Although the defendant claimed to be

using the cell phone, he admitted that he had only had it for a

day.       Moreover, he was unaware of the identity of its actual

owner, or even of its number, and he repeatedly told police that

the cell phone was not his.       Critically, police likely would not

have been able to return the cell phone to the defendant even if

he had requested it:       they would not have been able to ascertain

that the cell phone belonged to the defendant, as he stated that

he had received it from a male "crack head" and the cell phone

had the name "Vanessa" displayed on it.10      Whatever possessory

interest the defendant had in the cell phone was thus extremely

weak, in contrast to that in White, upon which the defendant

primarily relies.      In that case, the defendant was the actual

owner of the cell phone seized.       White, 475 Mass. at 595 n.15.




       We have said that whether police acted diligently in
       9

applying for the warrant is a factor that may be relevant. See
Commonwealth v. White, 475 Mass. 583, 594 (2016). However, we
have never said that it is a dispositive factor. Here, the
record is silent as to police work on applying for the warrant
in the ten days in question.

       The cell phone was later determined to belong to a woman
       10

named "Vanessa," who had lost it. Indeed, the Commonwealth
initially charged the defendant with receiving stolen property,
dismissing the charge only when the defendant stipulated that
the cell phone belonged to someone else.
                                                                    16


      The Commonwealth's interest in the cell phone, by contrast,

was strong:   police had probable cause to believe that evidence

critical to a recent murder was present on the cell phone, as

discussed supra.   There can be no doubt that there is a "strong

government interest in solving crimes and bringing offenders to

justice."   United States v. Hensley, 469 U.S. 221, 229 (1985).

This interest is particularly strong "in the context of felonies

or crimes involving a threat to public safety," such as murder.

Id.   Judged against the defendant's minimal possessory interest,

the governmental interests justified a ten-day delay.    See

Kaupp, 453 Mass. at 106-107 (nine-day delay reasonable in

investigation of child pornography).    A motion to suppress the

cell phone and its contents would have been unavailing; thus,

the defendant's ineffective assistance claim fails.

      5.   Review under G. L. c. 278, § 33E.   The defendant asks

us to exercise our extraordinary power to set aside or reduce

his verdict under G. L. c. 278, § 33E.11   His main argument is

that it is "close to impossible" for the defendant to have spent

so much time in the victim's apartment and yet "left not one


       In response to a request by this court, the parties
      11

provided further briefing on the question whether defense
counsel was ineffective for failing to request an instruction on
provocation. In Commonwealth v. Pierce, 419 Mass. 28 (1994), we
rejected a provocation instruction on facts nearly
indistinguishable from these. Although the victim touching the
defendant's testicles was offensive, "it was not the type of
behavior that would provoke a reasonable person into a homicidal
response." Id. at 32.
                                                                     17


trace."     This is not a compelling reason to grant relief under

§ 33E.    Defense counsel vigorously cross-examined witnesses

regarding the lack of physical evidence, and focused on it in

closing argument.     The Commonwealth, by contrast, presented

testimonial and documentary evidence that, although

circumstantial, was found to be sufficient to convict the

defendant.    See Commonwealth v. Gonzalez, 475 Mass. 396, 407

(2016) (circumstantial evidence alone may be sufficient to

convict).    "We do not sit as a second jury to pass anew on the

question of the defendant's guilt."     Commonwealth v. Watkins,

373 Mass. 849, 853 (1977).     See Commonwealth v. Wood, 469 Mass.

266, 269 (2014) (declining to grant relief under G. L. c. 278,

§ 33E, despite "lack of forensic evidence tying either

[defendant] to the crime scene"); Commonwealth v. Williams, 450

Mass. 645, 656 (2008) ("The lack of forensic evidence . . . was

argued to the jury . . . and was for them to consider").

                                      Judgment affirmed.

                                      Order denying motion for a
                                        new trial affirmed.
