Commonwealth v. Mazariego , 474 Mass. 42 ( 2016 )

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SJC-11719
COMMONWEALTH vs. EDWIN MAZARIEGO.
Worcester. January 12, 2016. - March 31, 2016.
Present: Gants, C.J., Spina, Cordy, Duffly, & Lenk, JJ.
Homicide. Felony-Murder Rule. Rape. Constitutional Law,
Voluntariness of statement, Waiver of constitutional
rights. Evidence, Voluntariness of statement, Inflammatory
evidence, Prior misconduct. Practice, Criminal, Capital
case, Motion to suppress, Voluntariness of statement,
Argument by prosecutor, Postconviction relief, Duplicative
convictions.
Indictments found and returned in the Superior Court
Department on June 14, 2010.
A pretrial motion to suppress evidence was heard by James
R. Lemire, J., and the cases were tried before David
Ricciardone, J.
Kathleen M. McCarthy for the defendant.
Susan M. Oftring, Assistant District Attorney, for the
Commonwealth.
SPINA, J. The defendant was convicted of murder in the
first degree on a theory of felony-murder, based on the
predicate felony of aggravated rape. He also was convicted of
2
aggravated rape, and he was sentenced to concurrent terms of
life in prison. On appeal, the defendant asserts error in (1)
the denial of his motion for a required finding of not guilty;
(2) the denial of his separate motions to suppress two
statements he made to police; (3) the admission in evidence of
emotional testimony from the victim's daughter; (4) the
admission of evidence of the defendant's prior bad acts; (5)
improper closing argument by the prosecutor; and (6) the denial
of his postconviction motion to reduce the verdicts to rape and
felony-murder in the second degree. We affirm the convictions
of murder in the first degree and order dismissal of the
aggravated rape conviction as duplicative. We decline to
exercise our power under G. L. c. 278, § 33E, to reduce the
degree of guilt or order a new trial.
1. Background. The jury could have found the following
facts. We reserve other details for discussion of particular
issues.
Walter Martinez lived with his father, Rafael Martinez, on
Benefit Street in Worcester in August, 2006. Rafael owned the
house. He rented one room to Julio Mancias, Walter's cousin,
and another room to the defendant, Mancias's friend. On August
18, 2006, at about 10:20 P.M., Walter saw Mancias and the
defendant talking to the victim in the hallway of their home.
At about 11 P.M., Rafael was driving home and saw Mancias with
3
two other people, one a woman, standing at the corner of Benefit
and Beacon streets. About two or three hours later, Rafael
heard a knock at a window. It was Mancias and the defendant.
They asked Rafael to let them in. When Rafael opened the door
they ran into the house and went directly to Mancias's room.
They appeared agitated and closed the door behind them. The
next morning, the victim's body was discovered by police near
train tracks in the vicinity of Benefit Street. She was naked
below the waist, her legs were spread apart, and her blood-
soaked shirt and sweater were pulled up. Her face was bloody.
Three bloody rocks ranging in weight from 11.17 pounds to 12.82
pounds were recovered near her body. A condom also was found
near her body.
About one month later, the defendant invited Walter to his
room for a beer. The defendant told him that he and Mancias had
been with a woman and that they had killed her in the basement
of the Benefit Street house. The defendant said Mancias
actually killed her by repeatedly hitting her on the back of her
head until she "dropped dead." He said they moved her body from
the basement of the house to some nearby train tracks. Walter
later confronted Mancias with what the defendant had told him.
Mancias admitted that he had killed the woman, and told Walter
that the victim was a prostitute and there had been a problem
over money. An individual unconnected to those mentioned above
4
initially was charged with the victim's murder, but
deoxyribonucleic acid (DNA) testing excluded him as the
perpetrator. The case remained unsolved for nearly four years.
In an unrelated case, a group of men fired shots at Walter,
Mancias, and the defendant in 2007. Mancias was killed, Walter
was paralyzed, and the defendant escaped unharmed. During a
pretrial meeting in that case in February, 2010, Walter told the
prosecutor and a detective about his conversations with the
defendant and Mancias in 2006. As a result, a Spanish-speaking
detective interviewed the defendant on April 29, 2010, after
first advising him of the Miranda warnings. The defendant said
he understood his rights and agreed to speak to the detective.
The detective showed the defendant a photograph of the victim.
The defendant said she did not look familiar.
A second interview took place on May 17, 2010, preceded by
the Miranda warnings. The defendant said he understood his
rights and agreed to speak to the detective. He admitted that
he had lied on April 29 when he said he did not recognize the
victim. The defendant said she was not killed in the basement,
but at the location where she was found. He first said that he
saw Mancias with the victim at about 1 A.M. on the night she was
killed, and did not see him again that night until about 3 A.M.
At that time Mancias told him that he wanted to have sex with
the victim, but he could not because it was too cold and the
5
victim did not want to have sex. Later in that conversation,
Mancias told the defendant that he had killed the victim because
she would not have sex with him. According to the defendant,
Mancias also said that he had killed her with some rocks. The
defendant denied being present when the victim was killed, and
he denied having sexual relations with her.
After further questioning on May 17, the defendant admitted
that he was with Mancias and the victim. He said that he went
with the victim first, that they both had removed their pants,
that he had positioned himself on top of her, and she insisted
on being paid. Because he had no money, he then hugged her, put
on his pants, and went over to Mancias. He said he told Mancias
that the victim did not want to have sex because he had no
money. The defendant denied having sexual relations with the
victim. He explained that sexual "relations" are when one
"finish[es]," and he did not "finish." Mancias told him to act
as a lookout in case the police came. The defendant said that
he went behind some bushes while Mancias took his turn. He
heard screams and he heard the hits. He said that he did not
see Mancias hitting the victim, but later said that he did see
Mancias hitting her with rocks, at which point he fled.
A forensic pathologist's testimony supported findings that
the victim died from blunt trauma to the head and that she had
been manually strangled, possibly before the head trauma.
6
Vertical drips of dried blood on her legs suggested that the
victim had been injured while she was standing. Examination of
her external genitalia revealed a dry and red chafing-type
abrasion to the inner folds of the labia of recent origin, that
is, between one day and seconds before death. The abrasions
were consistent with vaginal penetration. Neither sperm nor
seminal fluid was detected on swabbings from the victim's mouth,
vagina, and rectum. A vaginal swab tested positive for blood.
DNA test results supported findings that the victim's DNA
matched the major DNA profile in a mixture of biological
material on one of the rocks found at the scene, and that
Mancias was a potential contributor of the minor DNA profile in
the mixture. A mixture of biological material from the interior
of the condom was subjected to DNA testing. The defendant
matched the major DNA profile, and the victim was included as a
potential contributor of the minor DNA profile. Mancias was
excluded as a source of the DNA mixture from the interior of the
condom. A DNA mixture on the exterior surface of the condom was
tested. The victim matched the major DNA profile in the
mixture, and the defendant was included as a potential
contributor of the minor DNA profile.
2. Motion for required finding. The defendant contends
that the judge erred in three respects in denying his motion for
a required finding of not guilty. He argues that the evidence
7
was insufficient as to the issues of (1) penetration and lack of
consent; (2) aggravating factors for aggravated rape; and (3)
whether the killing occurred during the commission of a rape or
aggravated rape for purposes of felony-murder. The decision to
grant or deny a motion for a required finding is a question of
law. In reviewing the sufficiency of the evidence we consider
the evidence in the light most favorable to the Commonwealth and
ask if any rational trier of fact could have concluded that the
Commonwealth met its burden of proof as to the essential
elements of the crime charged. See Commonwealth v. Latimore,
378 Mass. 671, 677 (1979). A fact finder may rely on common
experience to draw inferences. Id. at 678. Inferences need not
be necessary. Id. at 678-679. "It is enough that [they] be
reasonable and possible" (emphasis added; citation omitted).
Commonwealth v. Marquetty, 416 Mass. 445, 452 (1993).
a. Penetration and lack of consent. The Commonwealth must
prove some degree of penetration, Commonwealth v. King, 445
Mass. 217, 221-222 (2005), cert. denied, 546 U.S. 1216 (2006),
and it must prove that such penetration occurred by threat of
force and against the will of the victim, Commonwealth v.
Sherry, 386 Mass. 682, 687 (1982).
The defendant contends that no rational fact finder could
have found beyond a reasonable doubt that he penetrated the
victim for purposes of rape, and that it was against the will of
8
the victim. He bases his argument on the following evidence:
he only hugged the victim because she would not allow him to
have intercourse unless he first paid her; the relatively recent
abrasions on the inner folds of the victim's external labia
could have been one day old and were consistent with several
possible causes other than penetration; testimony from the
Commonwealth's pathologist that science could not determine the
cause of the abrasions; the evidence that no seminal fluid or
sperm cells were detected on any of the swabbings of the victim;
and it could not be determined how the victim's DNA was
deposited on the condom found at the scene. The defendant has
distorted the Latimore analysis by casting the evidence in the
light most favorable to himself.
A jury could have found beyond a reasonable doubt that the
element of penetration had been established based on evidence
that the defendant's DNA matched the major DNA profile of the
biological material from the interior of the condom; that the
victim's DNA matched the major profile of the biological
material on the exterior surface of the condom; that in his
statements to Rosario the defendant lied about his involvement
and made incremental disclosures of his participation in the
incident; that the defendant admitted being on top of the victim
when they were both naked below the waist; that the abrasions to
the victim's external labia were consistent with forceful
9
penetration; and that penetration could be inferred from the
defendant's statement that he did not have sexual relations with
the victim because he did not "finish," which a jury could infer
to mean that the defendant penetrated but did not experience
orgasm. Separately, these facts would not warrant a finding of
penetration, but together, they possess a synergy that supports
a finding of the element of penetration. See Phillips v. Chase,
201 Mass. 444, 448 (1909) ("When circumstantial evidence is
largely relied upon to establish an issue, it is inevitable that
many matters should be introduced which by themselves alone
would be immaterial, although in connection with other evidence
they may be helpful in discovering the truth").
Additionally, a jury could have found that where the
defendant acknowledged that the victim made it clear that she
did not want to have intercourse unless she were paid in advance
and that she had not been paid, the defendant had nonconsensual
sexual intercourse with the victim, and that he did so with
force. The judge properly denied the defendant's motion for a
required finding of not guilty to the extent that the
Commonwealth made out a prima facie case of rape.
b. Aggravated rape. The defendant next contends that
there was insufficient evidence to support a verdict of guilty
of the crime of aggravated rape. Aggravated rape is rape "[a]
committed with acts resulting in serious bodily injury, [b] or
10
is committed by a joint enterprise, [c] or is committed during
the commission or attempted commission of" certain specified
offenses not relevant here. G. L. c. 265, § 22 (a). We are
concerned only with the first two alternatives, which are
intertwined in this case. A jury could have found the defendant
guilty on both alternatives based on the evidence that he and
Mancias both planned to have intercourse with the victim; that
they went to a location where the defendant previously had taken
prostitutes; that the defendant had no money to pay the victim;
that he did not ask Mancias to pay the victim; that neither of
them had money to pay the victim nor the intention to pay her
for sexual intercourse; that the defendant acted as a lookout
while Mancias hit the victim with heavy rocks; that the
defendant observed the killing; that after the victim collapsed
one or both men raised her bloody shirt and sweater to expose
her breasts and one or both men spread apart her legs; that they
fled together and arrived together at the Benefit Street house
where they rented rooms; and that the defendant told Walter that
"they" killed the victim.
A jury could infer the existence of a joint venture from
the circumstances, including engaging a prostitute for
intercourse without having any money or intention to pay; the
defendant positioning himself as a lookout during the beating,
see Commonwealth v. Hanwright, 466 Mass. 303, 313 (2013); the
11
evidence that Mancias and the defendant fled together, see
Commonwealth v. Williams, 422 Mass. 111, 121 (1996); and from
the other circumstances. "The relevant question is whether the
evidence would permit a jury to find guilt, not whether the
evidence requires such a finding." Commonwealth v. Lydon, 413
Mass. 309, 312 (1992), quoting Commonwealth v. Brown, 401 Mass.
745, 747 (1988). A jury had sufficient evidence from which they
could conclude that the defendant raped the victim as part of a
joint venture based on the evidence that he was present at the
scene, with knowledge that either or both men intended to have
nonconsensual sexual intercourse with the victim, and that the
defendant was willing and available to help Mancias if
necessary, the elements of a joint venture. See Commonwealth v.
Zanetti, 454 Mass. 449, 455 (2009).
Moreover, a jury had ample basis to find that serious
bodily injury was inflicted on the victim by Mancias while the
defendant was acting as his lookout. The jury were not required
to believe the defendant's statement that he had disengaged from
the joint venture, but that he remained with Mancias and that
they left the scene together. The judge did not err in denying
the defendant's motion for a required finding of not guilty as
to the crime of aggravated rape. See Commonwealth v. Lynch, 428
Mass. 617, 622 (1999).
12
c. Felony-murder. Last, the defendant contends that the
evidence was insufficient to establish beyond a reasonable doubt
that the killing occurred during the course of the predicate
felony, here, aggravated rape. "[F]or purposes of felony-
murder, the homicide and predicate felony 'need only to have
occurred as part of one continuous transaction'; and [the]
connection is sufficient 'as long as the [predicate felony] and
the homicide[] took place at substantially the same time and
place.'" Commonwealth v. Gunter, 459 Mass. 480, 488, cert.
denied, 132 S. Ct. 218 (2011), quoting Commonwealth v. Ortiz,
408 Mass. 463, 466 (1990). Where the jury could have found that
the defendant and Mancias had engaged in a joint venture to rape
the victim, that the defendant acted as a lookout for Mancias,
and that contrary to the defendant's assertion, he had not
disengaged from the joint venture, Mancias's killing of the
victim constituted felony-murder for which the defendant could
be convicted under a theory of joint venture. There was no
error in the denial of the defendant's motion for a required
finding of not guilty.
3. Suppression issues. The defendant argues that the two
statements he made on April 29, 2010, and the one on May 17,
2010, should have been suppressed on grounds that he did not
understand his Miranda rights, that he did not properly waive
his Miranda rights, and that the statements were not made
13
voluntarily. On April 29 the defendant was transported from the
Worcester County House of Correction, where he was being held on
an unrelated matter, to the Worcester police station. The first
statement on April 29 consisted of a pretrial interview of the
defendant with respect to the shooting case in which he was an
apparent target. The second interview concerned the instant
matter. On May 17 the defendant again was transported from the
Worcester County House of Correction to the Worcester police
station. That interview concerned the instant case. The three
interviews were video recorded and were conducted in Spanish, as
the defendant speaks little English.1 Detective Daniel Rosario
of the Worcester police department, who speaks Spanish,
conducted all the interviews. Transcripts of the interviews
were translated into English, and no question has been raised as
to the accuracy of either the transcripts or the translations.
The first interview on April 29 began at approximately 7:20 P.M.
and ended at approximately 8:45 P.M. The second interview on
April 29 lasted approximately one hour and ten minutes. There
was a break of about twenty-five minutes between the two
interviews on April 29. The May 17 interview lasted
approximately two hours and eleven minutes.
1
Because the interviews were conducted in Spanish, the
video recordings were not played to the jury. Instead, portions
of English translations of the transcriptions of the audio
portion of the recordings were read to the jury.
14
The defendant filed a pretrial motion to suppress these
statements. His motion alleged that all three statements should
be suppressed because they "were not preceded by a knowing and
intelligent waiver of Miranda rights," and because they "were
involuntary." The statement of most concern to the defendant
was the one that he made on May 17 because it contained
admissions relevant to this case. The defendant's theory for
suppression had two components, and it was complex. First, at
the beginning of the initial interview on April 29, during the
Miranda advisement, the defendant asked, "[O]n whose side is the
attorney?" He argued in his supporting memorandum of law that
the question demonstrated the defendant's ignorance of the role
of an attorney for purposes of Miranda rights, and because his
question was never answered on the record, his waiver of Miranda
rights could not have been knowing and intelligent as to any of
the statements, all of which were preceded by a Miranda
advisement that he never understood.2 Second, the interrogation
2
The defendant challenges on appeal the trial judge's
refusal to consider this issue, which the defendant renewed in a
motion in limine filed on the first day of trial. The trial
judge determined that he was bound by the decision of the motion
judge, who considered the same issue. Contrary to the
defendant's assertions, he raised precisely the same issue in
his memorandum of law in support of the motion to suppress. The
trial judge's ruling was correct. See Commonwealth v. Haskell,
438 Mass. 790, 792-793 (2003); Commonwealth v. Marmolejos, 35
Mass. App. Ct. 1, 3 (1993). We will treat the issue as having
been decided by the motion judge, and the matter will receive
full appellate review.
15
techniques employed during the second interview on April 29 were
so coercive as to render any statement he made at that time
involuntary, and their effect on the defendant did not dissipate
with time but instead continued to resonate and carried over to
May 17, rendering the May 17 Miranda waiver and the May 17
statement, as well as the second April 29 statement,
involuntary. This argument also was set forth in the
defendant's memorandum of law in support of his motion to
suppress.
The motion judge conducted an evidentiary hearing on the
motion to suppress at which the defendant testified about the
effects that Detective Rosario's interrogation of April 29 had
on him during the May 17 interview. After reviewing the video
recordings of the three interviews and the translations of the
transcripts, the motion judge concluded that the defendant
"knowingly, voluntarily and intelligently waive[d] his Miranda
rights before being interrogated on each of the three
occasions."3 The motion judge also found the defendant's
testimony about the coercive effects of the second April 29
interview to be "not credible," and he concluded that all three
statements given by the defendant were voluntary.
3
The parties do not dispute the judge's conclusion that all
three interviews were custodial interrogations.
16
a. Miranda issues. The path of the litigation of the
Miranda issues took an unwieldy turn, to which we alluded in
note 2, supra. On the first day of trial, after learning that
the prosecutor intended to offer portions of the defendant's
second statement from April 29 (there were no admissions, but
the prosecutor wanted the jury to hear what details of the
investigation had been shared with the defendant), the defendant
filed a motion in limine seeking to exclude both statements made
on April 29, essentially tracking the theories that had been
made in the motion to suppress. In his supporting memorandum of
law, and for the first time, he claimed that he invoked his
right to silence at the beginning of the second interview on
April 29. Based on discussions with counsel, the trial judge
assumed that the issue had been decided by the motion judge.
Unfortunately, no one alerted the trial judge to the arguments
made by the defendant in his memorandum of law in support of the
motion to suppress. Had that been done, the judge would have
seen that the claim of invocation of the right to silence was
new, and that he might have had discretion to consider it. See
Mass. R. Crim. P. 13 (a) (5), as appearing in 442 Mass. 1516
(2004); Commonwealth v. Haskell, 438 Mass. 790, 792-793 (2003);
Commonwealth v. Marmolejos, 35 Mass. App. Ct. 1, 3 (1993).
Because resolution of this question can be made by reviewing the
video recordings of the interviews and by reviewing the
17
translations of the transcripts of the interviews, we are in the
same position as was the trial judge, and we make our own
independent judgment about the facts and the legal analysis.
See Commonwealth v. Clarke, 461 Mass. 336, 340-341 (2012).
i. Knowing waiver. The defendant first contends that the
Commonwealth has not shown that he knowingly waived his Miranda
rights. During the Miranda advisement preceding the first
interview on April 29 the defendant asked in response to the
Miranda warning regarding the appointment of an attorney, "[O]n
whose side is the attorney?" The defendant contends that this
question, which never was answered, demonstrates that he did not
understand the Miranda warning about the right to an attorney,
and therefore he could not have waived his Miranda rights
knowingly and voluntarily. He further contends that this lack
of understanding about the role of an attorney at the first
advisement on April 29 remained unexplained and carried forward
as to all other advisements, namely, the second advisement on
April 29 and the advisement on May 17.
Although the defendant claims that he did not understand
the role of an attorney in the Miranda context, and that the
question he asked went unanswered, the record belies his
assertions. The record reflects that when Detective Rosario
started to explain the Miranda warnings in response to the
defendant's question about the role of an attorney, the
18
defendant interrupted him. Rosario had begun his explanation by
saying, "the most important thing is that you have the right to
remain silent. In other words, you don't have to talk to me if
you don't want to. Do you understand?" The defendant
immediately interjected, "No, but if it's about making a
statement, I'll give you a statement, because it's my family."
Rosario said: "But, do you want me to explain or do you
understand me all right?" The defendant replied: "No, I
understood you." Nevertheless, Rosario continued: "You can
give up the right I just read to you, to an attorney and your
right to remain silent, and you can answer any question or make
any statement that you want to, do you understand?" The
defendant replied, "Yes." Rosario continued: "If you decide to
answer the questions, again, you can stop at any time to consult
with an attorney. Do you understand more or less?" The
defendant indicated that he understood and agreed to speak to
Rosario. We are satisfied that, when Rosario explained that the
defendant could stop questioning at any time to consult with an
attorney, his explanation was adequate, the defendant accepted
the explanation, and the defendant indicated that he understood
his rights.
We have viewed the video recordings and considered the
translations of what was said during each of the three
interviews. We conclude that, in the totality of the
19
circumstances, the defendant received, understood, and then
knowingly and intelligently waived his Miranda rights before
each interview. See Commonwealth v. Edwards, 420 Mass. 666, 670
(1995).
ii. Invocation of right to silence. The defendant next
argues that he exercised his right to remain silent at the
beginning of the second interview on April 29. This issue was
raised for the first time in a motion in limine filed on the
first day of trial, as discussed in note 2, supra. At the end
of the first interview on April 29 the defendant asked, "You're
still going to continue interviewing, aren't you?" After a
short break and at the beginning of the second interview on
April 29 Detective Rosario asked the defendant what he meant by
his question at the end of the previous interview. The
defendant mentioned being taken back to the house of correction.
It appears that Rosario thought that the defendant meant he
wanted to keep talking in order to delay being sent back. He
asked the defendant if he wanted to continue talking. The
record indicates the defendant laughed and said, "No, no, no."
The context reveals that when he laughed and said, "No, no, no,"
the defendant was signaling Rosario's misunderstanding. Indeed,
in the very next exchange, the defendant said, "Yes, it is
fine," in response to Rosario's request to begin the interview
20
by advising the defendant of the Miranda warnings.4 The
defendant did not exercise his right to remain silent.
b. Voluntariness. The defendant next argues that his
May 17 statement was the product of coercive police
interrogation techniques employed during the second April 29
interview. We begin with the second April 29 interview.
Contrary to the defendant's claim, Rosario did not misrepresent
to the defendant that if he did not tell his side of the story
at that time, he would not later be able to tell it to a jury.
Contrast Commonwealth v. Novo, 442 Mass. 262, 268-269 (2004).
Rosario essentially told the defendant that it was his
opportunity to "explain it to me" and that it was important to
Rosario that the defendant be truthful at that time.
Rosario engaged in some deception, telling the defendant
that because their conversation was being recorded, he (Rosario)
could not lie to the defendant. That is not a correct statement
of law. The use of trickery or deceitful tactics, while
disfavored, does not necessarily compel suppression, but is a
factor to be considered when deciding if, in the totality of the
4
We note that the trial judge determined, essentially on
grounds of relevance and fairness, that the only portion of the
second interview on April 29 that could be admitted in evidence
was the defendant's statement, when shown a photograph of the
victim, that he had never before seen her. In his May 17
statement the defendant acknowledged he had not been truthful on
April 29 when he said he had never seen the victim before.
21
circumstances, a confession is voluntary. See Commonwealth v.
DiGiambattista, 442 Mass. 423, 432-433 (2004).
Rosario also employed the technique of minimization,
suggesting that the defendant's mere presence did not mean that
he killed someone. This was a correct statement of law, but it
could be misleading. Significantly, Rosario made no assurance
of leniency, so we consider the use of this technique to be a
factor that should be considered when determining whether, in
the totality of the circumstances, a confession is voluntary.
Id. at 437-439.
The defendant also cites Rosario's inquiry about whether
the defendant was a religious person. When the defendant said
he was, Rosario told him, "You can hide from us, but you cannot
hide from God." However, it was not Rosario who first broached
the subject of an Almighty observer. In response to Rosario's
question whether the defendant helped Julio Mancias move the
victim's body from the basement of the house to the railroad
tracks, the defendant said he did not, adding, "God is up there.
I am not lying." Rosario continued with the theme of divine
guidance, telling the defendant that he was being offered a
tremendous opportunity to be truthful now, otherwise he would
"have a very long time to ask yourself: why is it that when God
gave me the opportunity to tell the truth I just remained
quiet?" And later, "[twenty-eight] years old. Are you prepared
22
to spend the rest of your life in jail?" Unmoved, the defendant
replied, "Whatever God wants." We consider this aspect of the
interrogation to be a factor in the assessment of the question
of voluntariness. As with other factors, it alone is not
determinative.
Detective Rosario also used the ploy of being the
defendant's "brother," specifically, sharing a common bond of
Hispanic ancestry and culture. The defendant did not take the
bait.
Although some of Rosario's interrogation techniques warrant
our concern, none of them, either individually or in
combination, appears to have overborne the defendant's will.
See Commonwealth v. Tremblay, 460 Mass. 199, 206-207 (2011).
Indeed, as the motion judge found, "the defendant held his
ground and would not concede when [Rosario] tried to suggest
that he played more of a role in [the victim's] death." We have
viewed the video recording of the second April 29 interview, and
we agree with the motion judge. The defendant laughed or
chuckled at Rosario sixteen times. He yawned once. The
defendant held fast to his denials about involvement in a
killing in the basement at Benefit Street. Rosario had
information that the killing occurred there, but in fact it did
not occur there, and the defendant knew as much. The defendant
had the superior position as to the details of the killing, and
23
the calm he maintained during the interview, often with his arms
crossed with confidence, is entirely understandable.
Significantly, Rosario also maintained his composure throughout
the interview, never raising his voice, never taking an
aggressive attitude, and engaging the defendant in a
conversational tone at all times. Rosario did not overbear the
will of the defendant during the second interview on April 29.
Finally, we turn to the question whether the alleged
coercive nature of the second interview on April 29 smoldered in
the defendant's mind such that it adversely affected his waiver
of Miranda rights on May 17, and whether it rendered the
defendant's May 17 statement involuntary. The motion judge
specifically addressed these issues in his decision on the
defendant's pretrial motion to suppress evidence. Not only did
the motion judge view the video recordings of all the interviews
and the translations of transcriptions of all the interviews,
but the defendant testified at the hearing. Specifically, he
testified about how Rosario's statements made him feel. The
judge found the defendant's testimony "not credible." The judge
found the May 17 interview to be "an attempt [by the defendant]
to minimize his role in the crimes and was the product of his
rational intellect. He had the opportunity to reflect on the
facts he had received from the police and made a decision to try
to address these facts by providing information that tended to
24
diminish any culpability on his part." We defer to the judge's
findings of credibility and fact based on testimony that he
witnessed, and that we did not. See Commonwealth v. Hoose, 467
Mass. 395, 399 (2014). We have conducted our own "independent
review of the judge's application of constitutional principles
to the facts found," id. at 400, including a review of all the
video recordings and the translations of those recordings, and
we conclude that in the totality of the circumstances, the
defendant made a knowing and voluntary waiver of his Miranda
rights on May 17, and that his statement of May 17, which
included a piecemeal unfolding of his involvement in the crime,
was given voluntarily. There was no error in the denial of the
defendant's motion to suppress.
4. Testimony from victim's daughter. The defendant
objected to testimony from the victim's daughter, who described
their immediate family and briefly described the date and
circumstances when she last saw the victim and how she learned
of her death. The defendant argues this was irrelevant and an
improper appeal to sympathy. The testimony comprised but five
pages of the transcript. The judge gave an immediate limiting
instruction, telling the jury that the testimony was "not an
appeal to sympathy or emotions," but was offered "to give you
some background on the person, the decedent." The prosecutor
did not refer to the testimony in closing. Some limited
25
biographical detail may be given to humanize a victim, and the
testimony here fell within permissible limits, especially when
its use could not be used to engender sympathy or an emotional
response to the evidence. See Commonwealth v. Holliday, 450
Mass. 794, 816, cert. denied, 555 U.S. 947 (2008). There was no
error.
5. Evidence of prior bad acts. The judge admitted
evidence of the defendant's past history of bringing prostitutes
to the area of Benefit Street on the issue of motive, intent,
state of mind of the defendant, or lack of mistake on August 18-
19, 2006. The defendant timely objected, and now argues that
the evidence was irrelevant and prejudicial evidence of bad
character and propensity. Evidence of prior bad acts may not be
admitted to show bad character or a propensity to commit crime.
"[S]uch evidence may be admitted, if relevant, to show a common
scheme or course of conduct, a pattern of operation, absence of
accident or mistake, intent or motive." Commonwealth v.
Barrett, 418 Mass. 788, 793-794 (1994). The evidence showed
that on three prior occasions the defendant had had sexual
relations with three prostitutes in the vicinity where the
victim was killed. The judge immediately gave a limiting
instruction tracking the language of Barrett. The evidence was
relevant to show the defendant's intent, similarities in the
location where he took prostitutes, and absence of mistake,
26
namely, that the defendant knew that he brought no money to a
transaction that he must have known would require payment of
money, and that having no money was probative of the defendant's
intent to have sexual intercourse with a prostitute without
paying the requisite fee. It also was relevant to show that the
defendant had more than passive involvement in the planning of
the incident, where he was familiar with the particular location
of the crime and his past use of that location for engaging
prostitutes. There was no error.
6. Prosecutor's closing. The defendant asserts that the
prosecutor improperly misstated evidence, referred to facts not
in evidence, and improperly appealed to juror sympathy. See
Commonwealth v. Kozec, 399 Mass. 514, 516-517 (1987).
The prosecutor referred to the abrasion on the victim's
labia as "[f]resh." The defendant asserts that this was a
misrepresentation of the evidence. The prosecutor did not
misrepresent the evidence. The Commonwealth's pathologist
testified that these abrasions were recent, and she gave a time
range for their cause as being from a day before death to hours,
minutes, or even seconds before death. The pathologist's
opinion was expressed in isolation of the other evidence in the
case. The prosecutor's selection of a point in time within the
range expressed by the pathologist, as illuminated by other
evidence in the case, was fair, reasonable, and proper. A
27
prosecutor is permitted to make arguments of this nature to
assist the jury in analyzing the evidence and to suggest
conclusions they should draw from the evidence. See
Commonwealth v. Johnson, 429 Mass. 745, 750 (1999).
The prosecutor argued initially that the fresh abrasions to
the labia were "in the area of [the victim's] vagina," and that
these abrasions, "coupled with the blood found inside her
vagina, tells us the defendant didn't hug [the victim]. He
raped her." This argument was properly grounded in the
evidence. The prosecutor later misspoke, saying, "The injuries
to her vagina and the blood inside of it tell us that." The
defendant objected at the conclusion of the prosecutor's
argument. The defendant contends this was prejudicial error
requiring reversal. The judge acknowledged that the injury to
the vagina was a "misstatement," but not one that "amount[ed] to
impropriety." The judge immediately instructed the jury
generally that if either lawyer said anything that did not
concur with the jury's recollection of the evidence, the jury's
memory controlled. Although the prosecutor's reference to an
injury to the victim's vagina, rather than injury to the labia
and blood found in the victim's vagina as he previously argued
properly, was error, we think that it was not prejudicial. The
element of penetration does not require proof of vaginal
penetration, but may be met by evidence of a touching of the
28
labia. See Commonwealth v. Donlan, 436 Mass. 329, 336 (2002);
Commonwealth v. Gichel, 48 Mass. App. Ct. 206, 213 (1999).
Here, the Commonwealth's pathologist testified that the injury
to the labia was consistent with penetration. The manner in
which the judge addressed the issue was adequate.
The defendant next argues that the prosecutor impermissibly
appealed to juror sympathy when he argued that the defendant and
Mancias fled together, "leaving [the victim's] body on the side
of those tracks, as if she weren't even a human being, as if she
were the litter we saw walking around [during the] view."
Defense counsel objected at the end of the prosecutor's argument
and asked that the "litter" comment be struck and the jury
instructed. The judge overruled the objection, stating that the
prosecutor did not cross the line. We doubt that the
prosecutor's needless comment had the effect of sweeping the
jurors beyond a fair and calm consideration of the evidence, see
Commonwealth v. Smith, 387 Mass. 900, 905 (1983), and we
continue to credit jurors with that "certain measure of . . .
sophistication in sorting out excessive claims," Commonwealth v.
Kozec, 399 Mass. at 517. Regrettably, we cannot say the same
for those prosecutors who seem bent on interjecting low grade
drama into their closing arguments. Here, the jury did not
quite feel the prosecutor's passion, given that they found the
defendant not guilty of murder committed with extreme atrocity
29
or cruelty. This single reference was not so inflammatory as to
require a new trial. Commonwealth v. Judge, 420 Mass. 433, 452
(1999).
Finally, the defendant argues that the prosecutor argued
facts not in evidence when he said, "[The victim] died so the
defendants could cover up the rape they had just committed and
what they had done. And they ran up the hill afterwards
together . . . ." The defendant contends there was no evidence
to support this theory. There was no objection. There was
evidence to support a finding of aggravated rape by joint
venture, that the defendant acted as lookout for Mancias, and
evidence from which the jury could have found that they fled
together. The prosecutor was entitled to marshal the evidence
"in favor of his client." Commonwealth v. Johnson, 374 Mass.
453, 459 (1978), S.C., 409 Mass. 405 (1991). The argument,
although not one that flows inevitably from the evidence, asked
the jury to draw an inference that was "reasonable and possible"
(citation omitted). Commonwealth v. Marquetty, 416 Mass. at
452. Moreover, the absence of an objection to this statement
from vigilant defense counsel is some indication that the
comment did not land a foul blow that was unfairly prejudicial.
See Commonwealth v. Toro, 395 Mass. 354, 360 (1985). We
conclude that the argument did not create a substantial
30
likelihood of a miscarriage of justice. Commonwealth v. Wright,
411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014).
7. Motion to reduce verdicts. The defendant moved
postverdict, pursuant to Mass. R. Crim. P. 25 (b) (2), 378 Mass.
896 (1979), to order entry of findings of not guilty or,
alternatively, to order entry of verdicts on lesser included
offenses. The motion was denied, and the defendant appeals from
the denial of his motion. A judge's decision to exercise the
broad powers conferred by rule 25 (b) (2)5 is reviewed for abuse
of discretion or error of law. Commonwealth v. Lyons, 444 Mass.
289, 291 (2005). We do not substitute our judgment for that of
the trial judge. Other than arguing the facts of the case in
the light most favorable to himself, the defendant has not shown
that the judge abused his discretion.
8. Review under G. L. c. 278, § 33E. We have reviewed the
entire record, the briefs, and heard oral argument, and conclude
that there is no reason to reduce the degree of guilt or order a
new trial. However, the conviction on the indictment alleging
aggravated rape is duplicative of the conviction of felony-
murder and must be dismissed. See Commonwealth v. Lopes, 455
Mass. 147, 148 (2009).
5
We have likened the broad powers of a trial court judge
under Mass. R. Crim. P. 25 (b) (2), 378 Mass. 896 (1979), to our
powers under G. L. c. 278, § 33E. See Commonwealth v. Keough,
385 Mass. 314, 319 (1982), quoting Commonwealth v. Goulden, 383
Mass. 543, 555 (1981).
31
9. Conclusion. The judgment of conviction of murder in
the first degree is affirmed, as is the denial of the
postverdict motion under rule 25 (b) (2). The matter is
remanded for entry of an order dismissing as duplicative the
conviction on the indictment alleging aggravated rape.
So ordered.