A Superior Court jury found the defendant guilty of murder in the first degree based on deliberate premeditation, extreme atrocity or cruelty, and felony-murder. On appeal, the defendant asserts the following: (1) the judge erred in denying
We summarize the evidence in the light most favorable to the Commonwealth, reserving certain details for the discussion of issues raised by the defendant on appeal. See Commonwealth v. Burnett,
On October 4, 1995, at approximately 7:50 a.m., the defendant, who had been in the apartment since before 8:30 p.m. the previous evening, called the police from a public telephone claiming that he had just found a dead woman in his apartment. Shortly thereafter, the police discovered the victim’s naked body face down on the defendant’s bed. Her wrists were bound, and her mouth and nose were covered, with duct tape.
An autopsy revealed the victim suffered severe trauma to the face, head, left eye, and brain. There was also trauma to her vagina, which was coated with a silicone or petroleum lubricant. “[L]inear streaks of fecal material” were found near the anus and vagina, suggesting “something cylindrical had been inside the anus and come out and as it came out it wiped off on either side of the buttocks.” “There was fecal material in the vagina” consistent with penetration of the victim’s anus and vagina
1. Insufficiency of evidence presented to the grand jury. The defendant claims the motion judge erred in denying his motion to dismiss the indictment. Specifically, he maintains that the evidence submitted to the grand jury showed only that he was present at the time of the murder, rather than providing probable cause to believe that he was the person who committed the rape and the murder.
Generally a court will not inquire into the competency or sufficiency of the evidence before the grand jury. Commonwealth v. McCarthy,
The grand jury heard sufficient evidence to warrant a finding of probable cause. The following evidence was before the grand jury: The defendant told the victim that she was welcome to stay at his apartment for the night; after the victim was sleeping, the defendant told Langille that he did not want to receive oral sex, but wanted to “screw” the victim and said that he had plenty of condoms; the last person to see the victim alive besides the murderer was Langille, who left the apartment at approximately 3:30 a.m.; Langille told the police that a coworker had informed him that the previous week the defendant “was being weird, talking about wanting to kill someone”
Furthermore, an expert witness testified the autopsy revealed that the victim was badly beaten and suffered severe trauma to the vagina and anus, symptoms consistent with rape, before dying as a result of manual strangulation. He also testified that skin fragments found on the victim’s body indicated that the victim was in physical contact with someone who had a severe skin disorder.
Accordingly, there was a more than sufficient basis for the grand jury to have indicted the defendant. See Commonwealth v. Angiulo, supra at 510-512; Commonwealth v. O’Dell, supra at 450-453; Commonwealth v. McCarthy, supra at 163.
2. Allegations of ineffective assistance of counsel. The defendant argues that he received ineffective assistance of counsel, in violation of his constitutional right under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. Specifically, the defendant contends that trial counsel’s cross-examination of a witness regarding the defendant’s prior statement that, “If you bring somebody back to my house I’ll have to kill them,” resulted in the introduction of highly prejudicial and damaging testimony, was likely to have unfairly influenced the jury, and thus denied him effective assistance of counsel.
Because the defendant has been convicted of murder, we review his claims of ineffective assistance of counsel to determine whether there exists a substantial likelihood of a miscarriage of justice, as required under G. L. c. 278, § 33E, which is “more favorable to a defendant than is the constitu
Defense counsel’s cross-examination of Rivera, who had also been a suspect, suggested that he had fabricated his testimony to divert suspicion away from himself.
It was a reasonable defense tactic to attempt to discredit Rivera and point to him as a possible suspect. That Rivera told the police that the defendant had made incriminating statements to him at a time when he did not know the defendant was strong evidence attacking Rivera’s credibility and casting suspicion on him. It is difficult to imagine how defense counsel could have made use of this evidence without the jury’s learning what the purported incriminating statements were.
3. Sufficiency of the evidence. At the close of the Com
In review of a judge’s denial of a defendant’s motion for a required finding of not guilty, we inquire whether the evidence, considered in the light most favorable to the Commonwealth, was sufficient to satisfy a rational trier of fact of the essential elements of the crime beyond a reasonable doubt. See Commonwealth v. Woodward,
The Commonwealth presented evidence from which the jury could have inferred that the defendant was alone with the victim between 3:30 a.m. and 5 a.m., the approximate time of the murder. The fact that the defendant had the opportunity to commit the murder and was the last person to see the victim alive would not be sufficient to overcome a motion for a directed verdict.
The Commonwealth introduced evidence that, in addition to being alone with the victim shortly before the murder, the defendant had both the motive (sexual interest in victim)
There was forensic evidence which the jury reasonably could have inferred linked the defendant to the crimes. The police found the defendant’s T-shirt which was stained with the victim’s blood. The jury heard inconclusive evidence of fingerprints obtained from several pieces of the duct tape used to gag the victim, that displayed a “looped type pattern” consistent with the defendant’s fingerprints. Perhaps the most incriminating evidence against the defendant was a pair of boxer shorts that contained hair similar to the victim’s.
We conclude that these circumstances, “no one of which alone would be enough to convict the defendant, combine to
4. Review under G. L. c. 278, § 33E. The defendant requests that we exercise our power under G. L. c. 278, § 33E, to order a new trial, or, in the alternative, to reduce his conviction to murder in the second degree or manslaughter. In support of this request, the defendant maintains that the evidence in his case was weak because it did not prove, beyond a reasonable doubt, that he was the person who in fact killed the victim. As we have stated previously, this matter concerns the role of the jury, and we do not sit as a second jury in reviewing cases under G. L. c. 278, § 33E. See Commonwealth v. Martino,
Judgment affirmed.
Notes
The defendant suggests that this statement was improperly presented to the grand jury on the basis that it was highly prejudicial, lacked substantive value, and did not indicate that he wanted to kill the victim. He relies on Commonwealth v. Benoit,
Rivera became a suspect in the victim’s murder investigation in August of 1996, after the police discovered traces of his blood in the defendant’s apartment. During the subsequent custodial interrogation, Rivera alleged that in March of 1995, the defendant stated, “If you bring someone back to my house I’ll have to kill them.” On cross-examination, the defendant’s trial counsel inquired about Rivera’s prior statements to police. Defense counsel then elicited testimony from Rivera that he did not even know the defendant in March of 1995 because he had not met him until September of 1995, just two weeks prior to the murder.
Specifically, the defendant contends that the evidence was insufficient because it was based solely on surmise and conjecture. He relies on Commonwealth v. Mazza,
The Commonwealth does not have the burden of proving that no one else could have committed the murder. See Commonwealth v. Anderson,
See Commonwealth v. Cordle,
Both Rivera and Langille testified that the defendant appeared sexually attracted to the victim. Langille testified that after the victim went to sleep, the defendant told him that he wanted to “screw” and “fuck her” rather than receive oral sex from her. When Langille asked the defendant whether he needed any condoms, the defendant responded that he had plenty.
See Commonwealth v. James,
The defendant first called his mother at 5 a.m., claiming to have found a woman’s dead body in his apartment. The defendant made three other telephone calls to his mother, before calling the police at 7:50 a.m. A neighbor of the defendant testified that he saw the defendant at about 6:20 a.m. sitting on a low cement wall in a nearby parking lot, where the defendant offered him a cup of coffee.
Rivera and Langille, along with the defendant, admitted that they were smoking crack cocaine and drinking alcohol on the night the victim was murdered. The autopsy revealed that the victim had lubricating ointment on her vagina area as well as her anus. There was no semen found on the victim, which would indicate the use of a condom. However, when the police conducted a search of the crime scene, they did not find any evidence of drug paraphernalia, condoms, or lubricating ointment. During this three-hour interval, the jury could have inferred that the defendant disposed of this evidence.
The victim’s hair was stuck to the inside of the fly area of the defendant’s boxer shorts, and fecal matter was found on the outside of the fly. Skin particles were also found on the fly area of the defendant’s shorts, as well as covering the victim’s body. The jury could have reasonably inferred that the defendant wore his boxer shorts when he raped the victim, both vaginally and anally.