COMMONWEALTH vs. MARIO GONZALEZ.
SJC-11100
Supreme Judicial Court of Massachusetts
August 19, 2014
469 Mass. 410
Suffolk. April 11, 2014. - August 19, 2014. Present: IRELAND, C.J., SPINA, GANTS, DUFFLY, & LENK, JJ.
At a murder trial, no substantial likelihood of a miscarriage of justice arose from the admission in evidence of statements that the defendant made following police officers’ failure to recognize his invocation of his right to silence, where, even assuming that the statements in question should have been suppressed, the admission in evidence of those statements did not materially strengthen the Commonwealth‘s case and provided the defendant his most favorable version of events [414-417]; further, admission of the defendant‘s purported invocation of his right to silence did not create a substantial likelihood of a miscarriage of justice, where the evidence of the defendant‘s guilt was overwhelming. [417-418]
At a murder trial, the judge did not err in admitting in evidence, as dying declarations, the victim‘s statements to a paramedic, where the victim‘s belief in her impending death could be inferred from the character of her injury, where the victim died less than five hours after making the statements, and where the statements concerned the cause or circumstances of what she believed to be her impending death. [418-420]
At a murder trial, the judge did not err in admitting evidence of the victim‘s prior dissatisfaction with the defendant‘s drinking, which illustrated the nature of their relationship and suggested a motive for the killing (i.e., conflict about his excessive drinking); moreover, even assuming that admission of evidence of the victim musing that she would return to Puerto Rico if she had a baby and the defendant did not “do right” were error, no prejudice arose, where it was not clear what the victim meant by that remark, and where there was no suggestion that the defendant had abused the victim. [420-421]
The judge at a murder trial erred in failing to instruct the jury that they could consider any credible evidence of the defendant‘s consumption of alcohol in determining whether the defendant committed the killing with extreme atrocity or cruelty; further, the error created a substantial likelihood of a miscarriage of justice, where there was strong evidence of the defendant‘s intoxication at the time of the killing, and where the instruction given effectively removed what may have been the defendant‘s only viable defense to the question of extreme atrocity or cruelty. [421-423]
Chief Justice Ireland participated in the deliberation on this case prior to his retirement.1
A pretrial motion to suppress evidence was heard by Charles J. Hely, J., and the case was tried before Geraldine S. Hines, J.
David Keighley for the defendant.
Helle Sachse, Assistant District Attorney, for the Commonwealth.
GANTS, J. In the early morning hours of February 15, 2009, the defendant stabbed his girl friend multiple times shortly after they returned to his apartment from a local bar. The victim died of her wounds later that morning. A Superior Court jury convicted the defendant of murder in the first degree on a theory of extreme atrocity or cruelty, in violation of
Background. We summarize the evidence at trial, but reserve certain details for our discussion of the defendant‘s claims of error.
The defendant and the victim had been dating for approximately six months before the killing. The victim had asked the
At 3:15 A.M., the defendant telephoned 911, and reported, in Spanish, that someone had entered his apartment and stabbed his wife.3 The defendant told the 911 operator that he did not know who had entered his home, and explained, “I came a while ago, and my wife left the door open for him and someone entered and I don‘t know what happened, but . . . she‘s letting out a lot of blood.”
Police and emergency medical technicians arrived at the apartment house within a few minutes, and the defendant brought them to a bedroom in the third-floor apartment. The victim was lying on a bed, bleeding heavily from stab wounds. There was blood on the pillows and the doorknob, and blood spatter stains on the walls, but no blood on the floor; a wet mop was discovered behind the door of the defendant‘s bedroom, and the floor was wet underneath the bed where the victim lay bleeding. Boston police Officer James O‘Brien several times asked the victim who had stabbed her, and each time she replied, “I don‘t want to die.” Upon removing the victim‘s clothing, emergency medical technician Emilie Howard discovered that she had suffered six stab wounds to her left shoulder, one to her right shoulder, and one to her left chest just below the breast. The victim had no palpable blood pressure and was “close to dying.” In response to Howard‘s question about the length of the knife used in the attack, the victim implored, “Please don‘t let me die,” four times.
Because he spoke only Spanish and the responding officers spoke only English, the defendant was unable to communicate
Meanwhile, paramedics Sean Murphy and Michael Sullivan accompanied the victim in the ambulance to the hospital. They noted that the victim was pale, had no blood pressure, and had a life-threatening wound. As Murphy prepared to insert an intravenous (IV) tube, the victim pulled away and looked scared. Murphy explained to the victim that she was very sick, whereupon the victim allowed him to start the IV. Following instructions, the victim squeezed Murphy‘s hand to indicate that she understood what he was saying. Thereafter, Murphy asked the victim if her husband did this to her. The victim answered, “Yes.” Sullivan also asked the victim, “Your husband did this?” and the victim answered, “Yes, my husband.” The victim arrived at the hospital at approximately 3:30 A.M.4
When the defendant arrived at the police station, Cepeda brought the defendant to a holding cell and told him that he (Cepeda) would be across the hall if the defendant needed anything. As Cepeda started to walk away, the defendant said, “I was the one that got hit with a beer bottle in the face.” Cepeda turned around and asked him what really happened. The defendant then stated that he had come home from the bar and gotten into an argument with the victim about his drinking. The defendant said that the argument escalated, and that she hit him with a beer bottle in the face, pulled out a black folding knife, and charged at him. The defendant stated that he was able to twist the knife away from the victim and then stabbed her in the back several times. As the victim ran towards the front door, the defendant followed and said, “I‘m sorry, I don‘t know what happened. I don‘t know why I did this.” The defendant then helped the victim into bed and telephoned 911. Officer Cepeda asked the defendant about the location of the knife. The defendant first responded that it might be in the hallway, then said that it might have been thrown out the bedroom window, and later said that it might be in another room in the apartment.5 At approximately 9 A.M., the defendant called his roommate from the telephone by the booking desk of the station. The defendant left a message on his roommate‘s voicemail, in which he said he had been drinking and “had problems with the Puerto Rican woman” and stabbed her.
Discussion. 1. Suppression of defendant‘s statements made from the holding cell. Before trial, the defendant moved to suppress all statements he made to the police. In the affidavit accompanying the motion, the defendant stated that Cepeda “did not speak Spanish, as I know it, very well,” and that, as a result, the defendant did not understand what Cepeda said, and vice versa. He claimed, “Because of my inability to understand, no statement made by me at the police station was voluntary.” He did not assert that he ever invoked his right to silence.
After an evidentiary hearing, the motion judge, who was not the trial judge, found that “[t]he defendant spoke freely and coherently
But Officer Cepeda‘s testimony at trial regarding what the defendant had said at the apartment after he waived his Miranda rights differed from his testimony at the motion hearing. At the motion hearing, Cepeda testified that, after he told the defendant that the victim was still alive, “I asked him again what happened in the apartment, if anything else happened in the apartment.” Cepeda stated that the defendant replied, “No, nothing else happened.” At trial, however, Cepeda testified as follows:
THE PROSECUTOR: “Did you . . . tell him at that point anything about [the victim‘s] condition?”
THE WITNESS: “Yes, I did.”
THE PROSECUTOR: “What did you say to him?”
THE WITNESS: “I told him she‘s still alive. Do you want to tell me what happened here?”
THE PROSECUTOR: “Did he say anything else?”
THE WITNESS: “He said no.”
The defendant contends that Officer Cepeda‘s testimony at trial demonstrates that he invoked his right to remain silent by answering, “No,” to the officer‘s question. The defendant, however, did not object to the question or move to strike the answer. Nor did he ask the trial judge to revisit the denial of the motion to suppress in view of this answer. As a result, the issue before us is not whether the motion judge erred in denying the motion to suppress or whether the trial judge erred in not revisiting the
We consider first whether a substantial likelihood of a miscarriage of justice arose from the admission of evidence at trial that should have been suppressed had the defendant invoked his right to silence. The defendant made no further statement at the apartment following his purported invocation, and the defendant concedes that his volunteered statement to Officer Cepeda from the holding cell that he was “the one that got hit with a beer bottle in the face” was admissible. See, e.g., Miranda v. Arizona, 384 U.S. 436, 478 (1966) (“Volunteered statements of any kind are not barred by the Fifth Amendment [to the United States Constitution]“). Therefore, the only statements at issue are those made by the defendant from his holding cell after Cepeda asked him what really happened.
Had the defendant raised this claim with the trial judge and asked her to revisit the denial of the motion to suppress, the judge could have conducted a new evidentiary hearing, explored with Cepeda whether his testimony was more accurate at the motion hearing or at trial regarding what he asked the defendant and what the defendant said in response, and made findings of fact based on her evaluation of Cepeda‘s credibility as to what actually was said, which we would accept unless clearly erroneous. See Commonwealth v. Scott, 440 Mass. 642, 646 (2004). Without the benefit of such findings, we must determine whether the appeal can be resolved without remanding the case for such findings. We conclude that no remand is necessary because, even if the defendant were to prevail on remand as to every factual dispute and we were to conclude that all the defendant‘s statements from the holding cell made after Cepeda asked him what really happened should have been suppressed, the admission in evidence of those statements did not so materially strengthen the Commonwealth‘s case as to create a substantial likelihood of a miscarriage of justice.
If these statements were not admitted, the jury would have been left with evidence that the defendant‘s girl friend was found on a
The statements that the defendant claims should have been suppressed provided his most favorable version of events: an escalating argument about drinking, culminating in an assault by the victim, first with a beer bottle and then with a folding knife, which the defendant wrested from the victim and used to stab her multiple times before apologizing and helping her into bed and calling 911. It was this narrative that, if credited, permitted him to claim that he acted in self-defense or, if that fell short, that he should be convicted only of manslaughter because the killing was mitigated by reasonable provocation, heat of passion in sudden combat, or the excessive use of force in self-defense.7 In short, the admission of this evidence, if credited, gave him his best chance at an acquittal or a lesser verdict. Under these circumstances, the admission of this evidence did not create a substantial likelihood of a miscarriage of justice because we are substantially confident that, had this evidence been suppressed, the jury verdict would have been the same. Commonwealth v. Ruddock, 428 Mass. 288, 292 n.3 (1998).
2. Admission in evidence of defendant‘s purported invocation of silence. The defendant also contends that the admission in evidence of Cepeda‘s answer to the prosecutor‘s question, “Did [the defendant] say anything else?” compromised the defendant‘s
Although we recognize the risk that the jury may have made an adverse inference that the defendant did not want to tell the officer what really happened because he had committed the stabbing, we are confident that this adverse inference would have added little to the overwhelming weight of the evidence of the defendant‘s guilt. The prosecutor in closing argument referred to this testimony, but suggested that it showed the defendant‘s lack of empathy for the victim, not his fear of the consequences of telling the truth.8 This inference was supported more strongly by other testimony, including his demeanor during the recorded phone call to his roommate and his characterization of the victim as “the Puerto Rican.” Therefore, we are substantially confident that, if this testimony had never been heard by the jury, their verdict would have been the same. See id. at 75-76 (although defendant‘s statement, “I don‘t want to talk about it,” “should not have reached the jury, and the prosecutor should not have mentioned it in the closing argument, . . . [it] did not cause a substantial likelihood of a miscarriage of justice“).
3. Dying declaration. The defendant argues that the judge erred by permitting paramedic Sean Murphy to testify, over the defendant‘s objection, that the victim, while being transported to the hospital, asserted that her “husband” “did this to [her].” We conclude that the victim‘s statements were properly admitted as dying declarations.
The evidence was more than sufficient to support the judge‘s finding that the victim‘s statements met this evidentiary standard. When the victim made the statements, she had been stabbed eight times, and four of her wounds were independently life threatening. The wounds penetrated the victim‘s lung and spleen, causing profuse bleeding and affecting her breathing.11 The victim was pale and distraught, and seemingly in pain. At the apartment, the victim pleaded, “I don‘t want to die,” and, “Please don‘t let me die,” which she repeated multiple times. In the ambulance, the paramedics noted that the victim had no palpable blood pressure. In persuading her to allow the insertion of an IV, a paramedic informed her that she was “very sick.” She made the declarations regarding who “did this to [her]” in the ambulance, and died less than five hours later. See Middlemiss, supra at 632; Nesbitt, supra at 252.
The defendant acknowledges that the admission of the victim‘s statements is consistent with the standard articulated in our de-
4. Prior bad acts. At trial, the Commonwealth elicited evidence of prior bad acts from two witnesses. First, the victim‘s mother testified that she twice heard the victim tell the defendant to stop drinking, and that, a few days before the victim was killed, she saw the defendant pull the victim‘s arm after she told him that he should leave before he got drunk. After defense counsel objected to the testimony, the judge instructed the jury that the evidence was admitted for the sole purpose of establishing the defendant‘s state of mind and the relationship between the defendant and the victim. In addition, the taxicab driver, who had driven the defendant and the victim on multiple occasions, testified over objection that, a few months before her death, the victim said that she was expecting a baby and would take it to Puerto Rico if the defendant did not “do right.”12
The defendant argues that this evidence was too remote to rationally prove any issue at trial, and unduly prejudicial to the defendant. “While evidence of the defendant‘s prior bad acts is not admissible to show bad character or propensity to commit a crime, . . . such evidence is admissible if relevant to show the defendant‘s motive, intent, or state of mind” (citations omitted). Beneche, 458 Mass. at 80. “To be sufficiently probative the evidence must be connected with the facts of the case [and] not be too remote in time.” Commonwealth v. Butler, 445 Mass. 568, 574 (2005), quoting Commonwealth v. Barrett, 418 Mass. 788, 794 (1994). The judge also must find that the probative value of
The evidence reflecting the victim‘s prior dissatisfaction with the defendant‘s drinking illustrated the nature of their relationship and suggested a motive for the killing: conflict about his excessive drinking. See Commonwealth v. Bradshaw, 385 Mass. 244, 269-270 (1982) (“prosecution [is] entitled to present as full a picture as possible of the events surrounding the incident itself” lest murder appear “as an essentially inexplicable act of violence“). Where the evidence was accompanied by the judge‘s limiting instruction, we find no error in its admission.
We do not, however, see the relevance of the victim‘s musing about returning to Puerto Rico if she had a baby and the defendant did not “do right,” where there was no evidence that the victim was pregnant when she was killed or that there was discussion on the night of the killing about the possibility of her return to Puerto Rico. But we also see no risk of prejudice to the defendant arising from its admission, where it was not clear what the victim meant by “do right,” and where there was no suggestion that the defendant had abused the victim or wished to shirk his obligations if he were to father a child with the victim. If it were error to admit this testimony, it was not prejudicial error.
5. Jury instructions regarding intoxication. At the close of the evidence, the judge instructed the jury on the elements of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty, as well as the lesser included offenses of murder in the second degree and manslaughter. The judge gave the following instruction on intoxication after explaining murder in the first degree and its lesser included offenses: “In determining whether the Commonwealth has proved beyond a reasonable doubt the defendant‘s intent to commit the offenses I have just defined for you, you should consider all credible evidence relevant to the defendant‘s intent, including any credible evidence of the effect of drug or alcohol impairment on the defendant.” The judge did not instruct the jury that they could consider any credible evidence of the defendant‘s consumption of alcohol in determining whether the defendant committed the killing with extreme atrocity or cruelty, an instruction that in substance is required where there is evidence that the defendant was under the
The absence of such an instruction was error. See Rutkowski, 459 Mass. at 797-799; Commonwealth v. McDermott, 393 Mass. 451, 457-459 (1984). There was sufficient evidence of the defendant‘s intoxication at the time of the killing to warrant the instruction, and the instruction that was given regarding alcohol impairment was limited to consideration of the defendant‘s intent. “Intent and knowledge are not aspects of extreme atrocity or cruelty.” Rutkowski, supra at 797-798.13 Therefore, the judge‘s instructions on intoxication would have been understood by the jury to relate only to the elements of premeditation and malice, and not to whether the defendant acted with extreme atrocity or cruelty.
We turn now to whether the error in the jury instructions created a substantial likelihood of a miscarriage of justice. The Commonwealth contends that there was no substantial likelihood because its theory of extreme atrocity or cruelty focused on the number of stab wounds the defendant inflicted on the victim and her degree of suffering, and these Cunneen factors would not be affected by the defendant‘s intoxication.14 See Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983). This overlooks the rationale for the jury instruction, which is that “the jury should
Here, there was strong evidence of the defendant‘s intoxication at the time of the killing, and defense counsel in closing argument told the jury that “the consumption of alcohol that night could be key; it could be major.” But the jury instruction on intoxication “effectively removed what may have been [his] only viable defense to the question of extreme atrocity or cruelty.” Rutkowski, 459 Mass. at 799. Where the jury did not find the defendant guilty on the theory of deliberate premeditation, where the defendant was the first to telephone 911 after the stabbing, and where there was no evidence of a history of domestic abuse, we cannot say that “we are substantially confident that, if the error had not been made, the jury verdict would have been the same.” Ruddock, 428 Mass. at 292 n.3. See Rutkowski, supra, citing Commonwealth v. Wright, 411 Mass. 678, 682 (1992) (“[w]e cannot say that this error did not likely influence the jury‘s verdict“). We, therefore, vacate the verdict of murder in the first degree. Because the error affected only the jury‘s finding regarding the element of extreme atrocity or cruelty, and did not affect the jury‘s finding regarding the elements of murder in the second degree, the Commonwealth shall have the option of either proceeding with a new trial on the murder indictment or accepting a reduction of the verdict to murder in the second degree.
6. Relief pursuant to
ant; the manner and force with which the defendant delivered the blows; the weapon or weapons used by the defendant; and the disproportion between the means needed to cause death and the means used by the defendant. Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983).
So ordered.