EagleTribune.com, North Andover, MA

November 27, 2013

Police paid shooting victim to testify

According to grand jury testimony David Rivera never testified about street killing

By Douglas Moser
dmoser@eagletribune.com

---- — A Lawrence man shot to death outside a Methuen club last month was paid $1,000 by Lawrence police in exchange for testimony about a 2007 murder, according to Superior Court documents and the district attorney’s office.

But, David Rivera, 28, 246 Farnham St., Lawrence, never testified in the 2009 murder trial of Rudy Cruz, who was indicted in 2007 for shooting Daniel Bautista to death on the corner of Farnham and Phillips streets. A jury acquitted Cruz in Superior Court in October 2009.

Essex County Superior Court Judge Richard Welch III ruled that Rivera could not testify in the trial.

“He was excluded from testifying by the judge because we were not given notice that he was given these rewards, promises and inducements for his testimony,” said Ronald Ranta, Cruz’s defense attorney during the trial.

Carrie Kimball Monahan, a spokeswoman for Essex County District Attorney Jonathan Blodgett, this week said prosecutors did not know of the payment until the trial.

“The understanding I have is, it was a Lawrence police officer who made that arrangement,” Kimball Monahan said. “It was not disclosed to us. By the time is was, (Rivera’s) testimony had been put in.”

The district attorney’s office conducted a criminal inquiry into the payment, she said, and “we found no criminal wrongdoing. We referred it back to Lawrence police for their own internal disciplinary process.”

Kimball Monahan would not identify the Lawrence police officer or officers who made the payment because no criminal charges were filed.

Interim Police Chief James Fitzpatrick, who was appointed in September, said he was unaware of any kind of payment and would look into the matter.

Capt. Denis Pierce, commander of the Lawrence detectives unit, referred questions about Rivera to Blodgett’s office, citing the ongoing investigation into Rivera’s murder.

The Eagle-Tribune has filed freedom of information requests with the district attorney’s office seeking any reports generated as a result of its inquiry and with the city of Lawrence for the police department’s internal affairs inquiry file on the matter.

Rivera, who was listed as a Lawrence resident on witness lists in Cruz’s trial, was a reluctant witness. According to his grand jury testimony in November 2007, weeks after the shooting, Rivera said that he was compelled to testify to the grand jury.

Several days into Cruz’s trial in October 2009, Rivera’s attorney, Michael Seddon, gave a hand-written note to Ranta, saying Rivera, who was in jail at that time, did not want to testify and that “the police paid him $1,000 to testify. This was prior to his testimony at the grand jury.”

But Rivera also was a key witness, one of only a few who saw the actual shooting, according to grand jury testimony. Two of Rivera’s brothers, Alejandro and Jamie, and several close friends were in a yard off the street when the shooting occurred and ran to the street only after the shots were fired, according to the grand jury testimony of several of Rivera’s friends and siblings.

David Rivera was sitting in a car on Farnham Street in the evening of Oct. 30, 2007, when a shot rang out, according to his grand jury testimony. He turned, looked out the back of the car, and saw two people standing on the corner of Farnham and Phillips. One person pointed a gun at the other before firing another two or three shots.

He did not say to the grand jury that he recognized either person while the shooting was taking place, but testified that he made a U-turn in the car, drove to the corner, and found Cruz there bragging about shooting Bautista.

“He was one of only two or three who identified my client as being the shooter, so it was a pretty significant witness for the Commonwealth,” said Ranta, who also said he believed the prosecutor in the case, Jessica Connors, did not know about the payment before the trial.

Welch held a hearing that did not include the jury to consider the revelation Rivera was paid and decided to exclude Rivera because the police payment to him in exchange for his testimony was not disclosed, Ranta said.

No information was presented either way as to whether any of Rivera’s brothers or friends also were paid for their testimony, Ranta said.

Justin Prescott, a Haverhill resident who was the jury foreman in the case, said the testimony the Riveras and their friends gave had little weight in the jurors’ deliberations because of a confrontation between Jamie Rivera and Cruz earlier in 2007 over Cruz selling drugs on Farnham Street.

He said the jury did not know about the police payment to David Rivera. “We didn’t hear that in court. It would have been useful,” he said.

Former Lawrence Police Chief John Romero, who led the department at the time, said he did not know about the payment, including where the money came from and whether there was an inquiry into the matter.

“I don’t think it happens a lot,” Romero said. “But confidential informants are paid from time to time.” Romero said he did not know whether Rivera was a confidential informant.

Rivera was shot multiple times outside the Sahara Club in Methuen early in the morning on Oct. 23. Police and the district attorney’s office are still investigating, and Kimball Monahan declined to comment on whether Rivera’s paid testimony was part of that investigation.

Investigators believe Rivera and his killer were in the Sahara Club, which was rented out by a member for a private party the night of Oct. 22, before the shooting. William Amann, an attorney for the Sahara, said the club turned over surveillance video of that night to police.

Follow Douglas Moser on Twitter @EagleEyeMoser. To comment on stories and see what others are saying, log on to eagletribune.com.