EagleTribune.com, North Andover, MA

October 2, 2012

Witnesses: We can't remember

By Bill Kirk

---- — SALEM, Mass. — It was foggy inside Salem Superior Courtroom I yesterday.

Witness after witness took to the stand in the trial of two men accused of robbing and murdering a Chinese food deliveryman in Lawrence in 2009, unable to recall what they saw, what they said or what they heard.

One witness couldn’t remember that she had testified before a grand jury. Another witness couldn’t remember what he told the grand jury. And another witness more or less admitted on the stand that he had lied to police and defense investigators because he didn’t want to testify at the trial.

About the only thing that was clear during the second day of testimony in the trial, which may go to the jury as early as tomorrow, is that most of the witnesses didn’t want to be there at all.

Daniel Lee Lopez, 24, of Lawrence, is charged with first-degree murder, involuntary manslaughter and unarmed robbery of Thu Nguyen, 59, a Vietnamese immigrant who worked two jobs to support his family in Lawrence.

The other defendant, being tried simultaneously, is Ronnie Ramos, 20, also of Lawrence. He is charged with unarmed robbery.

Police and prosecutors allege that Ramos and Lopez called the Evergreen Restaurant at 105 So. Union St. the night of July 30, 2009, with the intention of robbing the deliveryman and stealing the food.

But something went awry, and at about 10 p.m., Nguyen was punched, fell to the ground, and fractured his skull. He died the following day at Tufts Medical Center in Boston, leaving behind his wife and three children.

Yesterday, prosecutor James Gubitose questioned a number of young people who were at a party that night at the Stadium Projects, a low-income development near Lawrence High School.

First up was Charlene Rios, 18, of 11 Lawrence St., who was just 15 at the time of the murder. She had gone to the party with three other people, didn’t know anybody, and left about 20 minutes later when the party was broken up by police.

She said she was walking across Osgood Street, near 230 Osgood, when she heard a “thump,” and looked over and saw the victim lying on the sidewalk.

She told Gubitose she saw two men standing near him, pointing to Ramos, whom she knew, and Lopez, whom she didn’t know. Ramos was holding Chinese food in his hands, she said.

Under cross-examination from Ramos’ lawyer, public defender Carol Cahill, Rios admitted she had been smoking marijuana all afternoon, and that her perception may have been affected that night.

Her memory also appears to have been affected.

“Do you remember speaking to the grand jury?” Cahill asked her.

“No,” Rios replied. She said she remembered speaking to police investigators, but wasn’t sure about speaking to an investigator working for the defense.

“Do you remember telling (an investigator) you didn’t see Ronnie (Ramos) holding anything?” she asked. She said she wasn’t sure.

“Your memory is cloudy and foggy?” she asked.

“Yes,” Rios said. “You’d been smoking marijuana, it was confusing?” Rios answered, “Sort of, yeah.”

She wasn’t the only one with memory problems yesterday.

Jimmy Guerrero, 20, also of Lawrence, under tough questioning from Gubitose, said he was also coming from the party, heard a thump, and saw the man lying on the sidewalk.

But when asked if he saw Lopez hit the deliveryman, as he had told the grand jury, he didn’t answer, instead staring blankly ahead.

“You took an oath to tell the truth,” Gubitose said sternly. “You told grand jurors you saw Bebe (Lopez’ nickname) punch the man.”

He pressed. “Did you tell defense investigators you didn’t see anything because you didn’t want to be here? So you wouldn’t have to testify?”

He replied, “Yes.”

Under cross-examination by Lopez’s lawyer, Aviva Jeruchim, of the Boston law firm of Jeruchim and Davenport, Guerrero admitted that he needed prescription glasses and that he wasn’t wearing them that night.

She noted that he had told a defense investigator that since he wasn’t wearing his glasses, he couldn’t see who was standing near the victim that night.

“The only thing you heard was a thump,” she said. “You didn’t really see anything that night, did you?”

“Right,” he answered.

When Gubitose questioned him again, Guerrero again gave the silent treatment.

“When the police asked you, and you said you didn’t know anything, that wasn’t true, was it,” Gubitose said. “You saw Lopez push the delivery guy down the stairs, right?”

Guerrero simply stared straight ahead, refusing to speak.

A similar exchange with the last witness prompted the judge to send the jury out of the room for the day so he could confer with lawyers over a matter of law.

Wainer Caba, 20, of Lawrence, said he was at the party, and had seen both Ramos and Lopez that night. Under questioning from Gubitose, he said he “didn’t remember” telling the grand jury that he saw Lopez carrying a brown delivery bag similar to what would be used by a Chinese food restaurant.

Gubitose even had him read the grand jury testimony.

“I don’t remember saying what he had in his hand,” Caba said.

“You don’t remember saying you saw a brown bag?” Gubitose said.

“No sir, I don’t remember,” he said. “I didn’t see no brown bag.”

Incredulous, Gubitose said, “You remember everything else but saying he was carrying a brown bag?”

Caba replied, “It was three years ago.”

At that point, the lawyers and judge held one of a half-dozen or more of sidebars of the session, after which the jury was dismissed.

Judge David Lowy then read the grand jury testimony and heard arguments from the lawyers during what is known as a 104A hearing, which is needed when a witness’ testimony doesn’t match the record.

Gubitose argued that Caba was “feigning” memory loss.

“He remembered everything else,” he said, except details “most damaging to someone he knows. He didn’t want to be here. He was feigning memory loss.”

But Jeruchim, Lopez’ attorney, argued that it was three years ago and that there were inconsistencies in witness statements all day.

The judge agreed with Gubitose that Caba was “feigning a lack of memory” and noted that while he was able to recall specific details of the evening, he couldn’t recall those details.

“This is not the type of thing a person would forget,” Lowy said, noting that the jury will be allowed to take the grand jury testimony into consideration when considering a verdict.

The jury is expected to begin deliberations by Wednesday.