Commonwealth v. Torres

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SJC-10849
COMMONWEALTH vs. JOSE TORRES.
Suffolk. April 11, 2014. - August 18, 2014.
Present: Ireland, C.J., Spina, Gants, Duffly, & Lenk, JJ.1
Homicide. Practice, Criminal, Capital case, New trial,
Assistance of counsel, Argument by counsel, Instructions to
jury. Evidence, Opinion, Expert opinion. Witness, Expert.
Indictment found and returned in the Superior Court
Department on June 26, 2008.
The case was tried before Elizabeth M. Fahey, J., and a
motion for a new trial, filed on October 19, 2011, was
considered by her.
Emanuel Howard for the defendant.
Donna Jalbert Patalano, Assistant District Attorney (David
A. Deakin, Assistant District Attorney, with her) for the
Commonwealth.
SPINA, J. The defendant was convicted of murder in the
first degree on theories of deliberate premeditation and extreme
atrocity or cruelty. He filed a motion for a new trial alleging
ineffective assistance of counsel, and he requested an
1
Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
2
evidentiary hearing. The trial judge denied the motion without
a hearing. Her indorsement in the margin said, "for the reasons
stated in [the Commonwealth's] opposition." On appeal the
defendant alleges error in the denial of his motion for a new
trial, the judge's failure to make findings, and the judge's
failure to hold an evidentiary hearing on the motion. We affirm
the conviction and the denial of the defendant's motion for a
new trial. We decline to exercise our power under G. L. c. 278,
§ 33E.
1. Background. The defendant moved into his girl friend's
third-floor apartment in the Dorchester section of Boston in the
middle of February, 2008. His girl friend, the victim, had four
children, the oldest of whom was six years old. On March 8,
2008, Kristina Ortiz visited the victim at her apartment. The
defendant and the victim's four children were there. As Ortiz
was leaving, the defendant made a disparaging remark about the
victim's children.
That evening the victim sent her six year old son down to
the first-floor apartment of a neighbor three times to ask the
neighbor to come up to his mother's apartment. Each time the
neighbor said she would be right up, but became distracted by
her own children and failed to appear. At 9 P.M. the defendant
went down to the first-floor apartment and told the neighbor
that his "wife was waiting" for her. The neighbor went up to
3
the victim's apartment at around 9:30 P.M. The victim asked the
neighbor if the neighbor knew where she could get some cocaine.
The neighbor was surprised because she knew the victim was
trying to stop using cocaine. The neighbor said she did not
know, and left after a brief conversation.
Sometime between 2 and 3 A.M. on March 9 the first-floor
neighbor heard "an unusual thud" from an apartment above hers.
The victim's apartment was two floors directly above her
apartment, but the neighbor could not tell if the noise had come
from the victim's apartment. Shortly thereafter she heard
footsteps coming down the stairs. She went back to bed.
At about 11:15 A.M. on March 9 the victim's two eldest
children appeared at the first-floor neighbor's apartment. The
oldest child said, "My mommy and daddy had a fight and he killed
her. She's dead." He added that the defendant had left. The
next oldest, who was five years old at the time of the incident,
testified at trial to the physical beating he saw the defendant
inflict on his mother. He saw the defendant push her under a
leg of the kitchen table, then sit on the table. The defendant
then locked the children in their bedroom.2 The neighbor went
upstairs and found the victim lying lifeless on the kitchen
floor in a pool of blood. An electrical cord was pulled tight
around her neck. The kitchen was in a state of disarray:
2
The record does not reflect how the children left their
bedroom.
4
furniture was overturned, the kitchen table was broken, and
laundry was strewn about the room. The neighbor gathered the
children, brought them to her apartment, and telephoned the
police.
In the meantime, at about 10 A.M. on March 9, the defendant
had gone to the home of Doris Serrano, where the defendant's
father lived in the basement. He told his father that the
victim had "kicked [him] out." His father asked about scratches
on the defendant's face. The defendant explained that the
victim had scratched him. The defendant left his duffle bag and
knapsack in his father's room and went out to have a beer.
Later that afternoon the defendant visited his cousin Iliana
Pagan (Serrano's daughter), who was a close friend of the
victim. Pagan's fiancé was present. The defendant explained
that the victim had scratched his face during an argument over
drugs. During the defendant's visit Pagan received a telephone
call in which she learned that the victim had been found dead in
her home. Pagan burst into tears. When her fiancé asked what
was wrong, she broke the news in a voice loud enough for the
defendant to hear. The defendant said nothing. He bowed his
head and put his face in his hands.
Police tried to locate the defendant. They went to
Serrano's apartment and asked if Serrano would get in touch with
him. Serrano reached the defendant by cellular telephone and
5
told him that his father was looking for him. The defendant
returned to Serrano's apartment within minutes. The police
asked him to accompany them to Boston police headquarters for
questioning. He agreed.
The defendant made a statement that was audiorecorded by
police. He told police that he loved the victim and was
supposed to marry her. He described what had happened the night
of March 8, saying that the victim went "bi-polar" on him. He
tried to hug her, but she scratched his face. She threatened to
kill herself and call the police if he did not leave. He
gathered all his belongings into a duffle bag (which was
"heavy") and a backpack, and then left. He took a bus to his
father's home, arriving at about 1 A.M. He denied striking the
victim or killing her. He also said he loved her children. The
defendant said he could not have hit the victim with the kitchen
table because he has arthritis and scoliosis, and could not lift
heavy objects.
The pathologist who performed the autopsy determined that
death was caused by a combination of ligature strangulation
(probably by the electrical extension cord found around the
victim's neck) and a sharp incision to the front of the victim's
neck that severed her right carotid artery and jugular vein, and
completely divided her trachea (windpipe). The strangulation
occurred before the incision wound. The victim had suffered
6
blunt trauma to her head. She also had been exposed to a
caustic chemical, such as bleach, after death. The pathologist
could not determine if the incision wound was caused by drawing
a sharp blade from right to left or from left to right.
Police recovered the duffle bag and backpack the defendant
had left in his father's room. Inside the duffle bag was a
"CharlieCard," a fare card used for Massachusetts Bay
Transportation Authority (MBTA) services, that had been used at
11:33 P.M. on March 8 on an MBTA bus that passed within a few
blocks of the victim's apartment. Also inside the duffle bag
was a receipt from a 7-Eleven store that evidenced a cash
purchase at 12:02 A.M. on March 9, 2008. The backpack contained
personal items, including a notebook, a pair of sandals, and
some clothing.
The notebook had served as a journal. The defendant had
made an entry on January 11, 2008, in which he wrote:
"Today was a real good day. But out of nowhere I got
filled with rage and a lot of anger for no apparent reason.
I'm sick and tired of my mental illness. I can't control
my actions. I'm afraid that one day I'm going to blow-up
on someone. I'm on my meds like I'm supposed to be. . . .
It's like all the people who done me wrong are targets.
The way I see it it is like one thing in my mind,
Liquidation time. Vaporize all the wrong doer's to me and
my life."
The tread on the defendant's left sandal was similar in
size and pattern to a footwear impression made in blood within a
few feet of the victim's body. The impression left at the crime
7
scene lacked sufficient detail to support a definitive
comparison.
The victim was found to be a potential source of
deoxyribonucleic acid (DNA) evidence recovered from reddish-
brown stains on the heel of the defendant's right sandal, three
areas on the defendant's duffle bag, and the handle and blade of
a knife found in the victim's kitchen sink, as well as a brown
stain on the defendant's shirt, where 1 in 39 quintillion
Caucasians, 1 in 1.7 sextillion African Americans, and 1 in 260
quadrillion Southeastern Hispanics would have the same genetic
profile. The victim was also determined to be a possible source
of DNA recovered from reddish-brown stains containing a mixture
of DNA from two individuals on the defendant's denim pants,
where 1 in 44 trillion Caucasians, 1 in 2.5 quadrillion African
Americans, and 1 in 1.8 trillion Southeastern Hispanics would
have the same genetic profile. Both the victim and the
defendant were determined to be potential contributors to a
mixture of DNA from three or more individuals found on the upper
half of the sole of the defendant's right sandal.
The defense theory was that the defendant did not kill the
victim. He had no motive to kill the victim, whom he loved, and
he left her apartment after they argued. He contended there was
not enough time between the visit by the first-floor neighbor at
9:30 P.M. and the CharlieCard activity at 11:33 P.M. for him to
8
kill the victim, pack his belongings, and attempt to cover his
tracks at the scene with bleach or other caustic substance.
2. Standard of review. The defendant asserted multiple
claims of ineffective assistance of counsel in his motion for a
new trial. Because he has been convicted of murder in the first
degree and his appeal from the denial of his motion for a new
trial has been consolidated with his direct appeal, we consider
his claims of ineffective assistance of counsel to determine if
any error has created a substantial likelihood of a miscarriage
of justice, as required by G. L. c. 278, § 33E. This standard
of review is more favorable to the defendant than the
constitutional standard for determining ineffective assistance
of counsel. See Commonwealth v. Wright, 411 Mass. 678, 682
(1992). Under this more favorable standard, we consider whether
there was error by trial counsel, regardless whether trial
counsel's performance fell measurably below that of an ordinary
fallible lawyer, and, if there was, whether the error was likely
to have influenced the jury's verdict. Id. However, a
strategic decision by an attorney constitutes error only if it
was manifestly unreasonable when made. See Commonwealth v.
Smith, 456 Mass. 476, 482 (2010).
A judge is required to conduct an evidentiary hearing on a
motion for a new trial only if a substantial issue is raised by
the motion or affidavits. See Commonwealth v. Wallis, 440 Mass.
9
589, 596 (2003); Mass. R. Crim. P. 30 (c) (3), as appearing in
435 Mass. 1501 (2001). In that regard a judge considers the
seriousness of the issues raised and the adequacy of the
defendant's showing on those issues. See Commonwealth v.
DeVincent, 421 Mass. 64, 67 (1995). A judge is not required to
credit assertions in affidavits submitted in support of a motion
for a new trial, and may evaluate them in light of factors
pertinent to credibility, including bias, self-interest, and
delay. See Commonwealth v. Grant, 426 Mass. 667, 673 (1998). A
judge may rely on his or her knowledge of the trial and
evaluation of the witnesses and evidence at the trial when
reaching a decision on a motion for a new trial, including
whether to decide the motion without an evidentiary hearing.
See Commonwealth v. DeVincent, supra at 69.
The judge must make findings of fact necessary to resolve
the defendant's allegations of error of law in a motion for a
new trial. See Mass. R. Crim. P. 30 (b), as appearing in 435
Mass. 1501 (2001). A judge's failure to make findings required
by rule 30 (b) is "not fatal . . . where the ultimate conclusion
is clearly evident from the record," Commonwealth v. Lanoue, 392
Mass. 583, 586 n.2 (1984), or where we are satisfied that "on
review of the whole case manifest injustice would [not] result."
Commonwealth v. Preston, 393 Mass. 318, 322 n.4 (1984). See
Commonwealth v. Dunnington, 390 Mass. 472, 478 (1983).
10
3. Discussion. We turn to the defendant's claims of
ineffective assistance of counsel.
a. The defendant faults trial counsel for failing to
exploit the time difference between the defendant's use of his
CharlieCard at 11:33 P.M. on March 8 and the "unusual thud"
heard by the first-floor neighbor on March 9 between 2 and 3
A.M. followed by the sound of footsteps she heard shortly
thereafter going down the stairs, both of which the Commonwealth
relied on to link the defendant to the killing. He also faults
counsel for failing to request an alibi defense and pursue a
third-party culprit defense (which he claims would explain the
thud and footsteps heard by the first-floor neighbor).
In his closing argument trial counsel did in fact highlight
inconsistencies in the timeline. However, the time of death had
not been established by the autopsy. The pathologist could only
opine that the victim had been dead more than twenty-four hours
by the time of the autopsy on March 11, 2008. Because it was
not clear precisely when death occurred, an alibi defense would
not likely have succeeded where the defendant did not have an
alibi for the time between 9:30 and 11:33 P.M. on March 8, when
the jury could have determined that the killing occurred.
Had trial counsel pursued a third-party culprit defense,
about which the defendant offers no details, the Commonwealth
was ready to offer evidence of the defendant's jailhouse
11
confession to another inmate that included many details not
publicly known, together with a detailed diagram of the crime
scene. After trial counsel announced that the defendant would
not testify, the prosecutor decided not to call as a witness at
trial the inmate to whom the defendant had confessed. Counsel's
decision to make do with what he had rather than pursue a highly
risky strategy not likely to produce favorable results (but
likely instead to yield highly damaging admissions from the
defendant) was a reasonable tactical decision we infer from the
record. "Neither ineffectiveness nor a likelihood of a
miscarriage of justice arise from counsel making the best he can
out of the circumstances of the crime." Commonwealth v. Hung
Tan Vo, 427 Mass. 464, 471 (1998).
This theory of ineffectiveness was not supported by any
affidavit filed on behalf of the defendant.3 We are satisfied
that no substantial question was presented that required an
evidentiary hearing, and that on review of the whole case there
was no substantial likelihood of a miscarriage of justice in the
absence of written findings by the judge. The existence of a
reasonable tactical decision by trial counsel in proceeding as
he did is clearly evident from the record.
3
Trial counsel submitted an affidavit in response to
specific questions posed by appellate counsel concerning each
issue raised in the motion for a new trial (and on appeal).
Trial counsel's response was: "As to these topics, I cannot
remember whether I specifically considered these issues, or not;
however, I remember leaving 'no stone unturned' in this case."
12
b. The defendant contends that trial counsel was
ineffective for failing to object to testimony by Serrano to the
effect that she lied to the defendant by telling him his father
was looking for him. She said she knew that if she had said the
police were looking for him he would not come. The defendant
argues that this was impermissible comment on his credibility.
See Commonwealth v. Triplett, 398 Mass. 561, 567 (1986).
Although probably objectionable, Serrano's remark did not
create a substantial likelihood of a miscarriage of justice.
Contrary to the defendant's assertion, the prosecutor did not
refer to, or even allude to, Serrano's statement in his closing
argument. Trial counsel elicited from Serrano on cross-
examination that she had been with the victim and the defendant
for about fifteen minutes on March 6, two days before the
victim's death, and that they appeared to be getting along.
Serrano detected no tension between them at the time. Moreover,
the defendant went with police voluntarily to give a statement,
offering no resistance. We are satisfied that Serrano's remark
was fleeting and isolated. It was hardly the kind of
prejudicial comment that permeates the testimony of a key
Commonwealth witness on a critical issue in the case such that a
new trial is required. Compare Commonwealth v. Triplett, supra.
Counsel was not ineffective.
13
c. The defendant asserts that trial counsel was
ineffective for failing to recognize that the incision on the
victim's neck was caused by a left-handed person, for failing to
recognize from available information that the defendant was
right-handed, and for failing to consult with an appropriate
expert to show that the defendant could not have caused the
incision wound. This is the only claim of ineffective
assistance of counsel supported by affidavit.
The defendant presented the affidavit of a physician who is
a recognized expert on knife wounds and has testified as an
expert both for the Commonwealth and for defendants. Based on
the autopsy report and autopsy photographs, it was the
physician's opinion that "[t]he pattern of this incision [wound
to the neck] is most consistent with an assailant delivering the
incision using his left hand while positioned behind the
victim." The defendant filed an affidavit stating that he is
and always has been right-handed. Affidavits from his mother
and his older sister similarly attested to his right-handedness.
The defendant also submitted medical records indicating two
injuries purportedly consonant with right-handedness.
The defendant's assertions that trial counsel failed to
recognize critical details is purely speculative. In addition,
even if this defense had been presented to the jury, it likely
would not have influenced the jury's conclusion. See
14
Commonwealth v. Wright, 411 Mass. at 682. The defendant told
the detectives who interviewed him, "I cannot lift heavy objects
. . . I cannot really grasp, like grasp, certain things . . . .
Any time I try to grasp something hard, all I feel is a pain and
it goes straight numb cuz you can feel the bone right here. I
don't do much lifting. I can't exercise." Although the
defendant may be right-handed, he told police he is unable to
use his major hand for rigorous projects. Moreover, he has not
claimed that he could not grasp something, such as a knife, with
his left hand and use it to cut the victim's throat. Nor has he
claimed that he would not have been able to strangle the victim
with an electrical cord. The defendant admitted carrying his
heavy duffle bag and his backpack when he left the victim's
apartment to go to his father's home. The jury could well have
believed that the defendant could not have cut the victim's
throat with his right hand, but instead used his left hand.
Moreover, the evidence strongly suggested that the victim's
throat was cut after she was strangled. The jury could have
concluded that the neck wound was inflicted after the victim
collapsed to the floor, not while the defendant was standing
behind her, as the defendant's expert implied. Cutting the
victim's throat while she was in that condition would not have
been difficult, even for someone with disabilities the defendant
claims to have.
15
The defendant has not raised a substantial issue about his
right-handedness that would have required the judge to hold an
evidentiary hearing. The record strongly refutes a conclusion
that only a left-handed person could have cut the victim's
throat. Written findings were not required to resolve any
issues. We conclude that the defendant has not shown that
counsel was ineffective in failing to pursue this issue.
d. Contrary to the defendant's argument, trial counsel was
not ineffective for failing to request a Daubert-Lanigan
hearing, or otherwise failing to object to or moving to strike
the expert testimony concerning the comparison of the treads on
the defendant's footwear with a footwear impression made in the
blood at the crime scene. See Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579 (1993); Commonwealth v. Lanigan, 419 Mass. 15
(1994). The defendant emphasizes that of the four factors
considered by the Commonwealth's expert, namely, (1) pattern,
(2) size, and two individualizing factors -- (3) wear and tear,
and (4) distinctive (random) marks -- the witness acknowledged
that only factors (1) and (2) were similar, and because there
were insufficient details as to factors (3) and (4) to enable
the witness to conclude that they, too, were similar, the
witness should not have been permitted to give an opinion that
essentially was speculative. The expert opined that a bloody
footprint impression at the crime scene could have been made by
16
the defendant's left sandal, but he could not give a definitive
opinion.
Judges have broad discretion in deciding whether to admit
expert testimony. Commonwealth v. Fitzpatrick, 463 Mass. 581,
603 (2012). The test is whether the testimony "will assist the
trier of fact to understand the evidence or to determine a fact
in issue." Mass. G. Evid. § 702 (2014). See Commonwealth v.
Dockham, 405 Mass. 618, 628 (1989). An expert opinion that is
not definitive, but expressed in terms of observations being
"consistent with" a particular cause, or words of similar
effect, does not render the opinion inadmissible on the ground
that it is "speculative." See Commonwealth v. Azar, 32 Mass.
App. Ct. 290, 302-303 (1992), S.C., 444 Mass. 72 (2005).
Here, the expert was asked if he had an opinion "to a
reasonable degree of scientific certainty" whether the
defendant's left sandal was "consistent with" the bloody
footprint observed at the crime scene. He said he had such an
opinion, and that the defendant's left sandal "could have" made
the bloody impression, but the impression "was not detailed
enough for a more definitive conclusion." Having explained to
the jury how he applied the four factors, he further explained
how they shaped his opinion, which essentially neither excluded
the defendant's sandal nor led him to opine regarding the
existence of a definitive match. Instead he was led to an
17
inconclusive result. Trial counsel made this quite clear in his
cross-examination, that is, the expert's opinion did not express
the existence of a definitive match. The expert's opinion was
not improper. See Commonwealth v. Azar, supra.
The defendant contends that where only two out of the four
factors produced positive results, the expert's opinion did not
even rise to the level of a preponderance of the evidence and
thus was speculative. We disagree. There is no suggestion in
the record that a proper analysis requires a particular "score"
among the four factors. Rather, as with many areas of forensic
science, prescribed factors that must be applied when
considering a particular matter ultimately involve a matter of
judgment, and are intended to guide and shape the expert's
reasoning. How the expert proceeds with the application of
those factors is usually fertile ground for cross-examination.4
What is often crucial is how the expert presents his or her
opinion and analysis to the jury. Of particular concern is the
danger that the jury is misled into an understanding that the
"science" at hand is "hard" science, when in fact it is "soft"
science. There was no danger of that in this case. The jury
were given the visual images of the defendant's left sandal and
4
If the defendant had chosen to call an expert witness to
give an opinion that the footwear impression was not consistent
with the defendant's left sandal, relying on the same factors as
the Commonwealth's expert, we have no doubt that the opinion
would have been admissible.
18
the bloody impression made at the crime scene, and the expert
led the jury through the factors he applied in his analysis.
Although the witness should not have been asked if he had an
opinion to a reasonable degree of scientific certainty but
instead should have been asked if he had an opinion to a
reasonable degree of certainty within the study of footwear
impression comparison, or comparable words, it was readily
apparent to the jury that the opinion given was a matter of
judgment, and not a scientific result driven by precise
mathematical calculations. See Commonwealth v. Pytou Heang, 458
Mass. 827, 848-850 (2011). It was made clear to the jury that
this was a matter they could weigh for themselves, and the judge
instructed them that they could accept or reject an expert's
opinion.
The evidence had probative value that was enhanced when
juxtaposed with the expert testimony about the DNA evidence from
the defendant's right sandal. The prosecutor did not argue
unfairly from the testimony of the expert on footwear
impression, as the defendant contends. The prosecutor spent a
significant amount of time discussing the DNA evidence in his
closing argument. At the end of that discussion he spoke
briefly about the footwear impression testimony, arguing
essentially that, when viewed together, the DNA testimony and
the footwear impression testimony provided strong circumstantial
19
evidence that the defendant was the person who killed the victim
because the victim's blood made its way on to the defendant's
right sandal at about the same time the defendant stepped in her
blood and left a footwear impression with his left sandal. The
powerful synergistic effect of the expert testimony was an
entirely reasonable and proper inference to draw.
Finally, the defendant has not shown that had trial counsel
moved for a hearing under Commonwealth v. Lanigan, supra, the
Commonwealth's expert probably would not have been allowed to
testify. Cf. Commonwealth v. Comita, 441 Mass. 86, 91 (2004)
("in order to prevail on an ineffective assistance of counsel
claim on the ground of failing to file a motion to suppress, the
defendant has to demonstrate a likelihood that the motion to
suppress would have been successful").
For the foregoing reasons, we conclude that counsel has not
been shown to be ineffective as to this claim.
e. There is no merit to the defendant's claim that counsel
was ineffective for arguing on manslaughter in his closing
argument, a theory that was inconsistent with the primary theory
at trial, which was that the defendant was not the killer. The
Commonwealth's case was very strong, and trial counsel carefully
avoided the admission of the defendant's jailhouse confession.
Trial counsel requested a manslaughter instruction based on
theories of heat of passion and reasonable provocation (the
20
victim first scratched his face and then "kicked [him] out").
His argument to the jury was more in passing than it was
inconsistent with the primary trial strategy. He argued at the
very end of a closing argument that spanned approximately
twenty-three pages of the transcript, "You must return -- must
return a verdict of not guilty. And at the most, at most, the
government has proven manslaughter." The argument was hardly
the "abrupt switch" in strategy about which the defendant
complains. Rather, in the context of the entire closing
argument and the entire trial, it was the gentle planting of a
small seed. It served primarily as a quiet introduction to the
judge's instructions, and not a shift in strategy. The
requested instruction also gave the jury, and the defendant, an
additional option between guilty of murder and not guilty of
murder. Without an affidavit from the defendant or counsel as
to what, if anything, was discussed in this regard, we cannot
say that counsel's strategy was manifestly unreasonable. This
is especially true in light of the understated manner in which
counsel proceeded on this issue.
Finally, the judge's instruction on manslaughter was the
model instruction. Counsel's failure to object to the
instruction was not ineffective assistance of counsel. See
Commonwealth v. Tassinari, 466 Mass. 340, 356-357 (2013)
(manslaughter charge nearly verbatim to model instruction -- no
21
error). Taken as a whole, we think the jury understood that a
verdict of guilty of murder in the first degree required proof
beyond a reasonable doubt of the absence of reasonable
provocation and the heat of passion, and that there was no error
as in Commonwealth v. Acevedo, 427 Mass. 714, 717 (1998).
For the foregoing reasons, we conclude that trial counsel
has not been shown to have been ineffective. We also discern no
error in the denial of an evidentiary hearing, and we conclude
that there was no substantial likelihood of a miscarriage of
justice in the judge's failure to make written findings.
4. Review under G. L. c. 278, § 33E. We have reviewed the
briefs and the entire record and conclude that there is no
reason for us to reduce the degree of guilt or order a new
trial.
Judgment affirmed.
Order denying motion for a
new trial affirmed.