Supreme Judicial Court of Massachusetts, Middlesex
Argued October 10, 2014.
Indictments found and returned in the Superior Court Department on June 24, 2010.
The cases were tried before Richard T. Tucker, J.
Dana Alan Curhan for the defendant.
Jamie Michael Charles, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ.
[20 N.E.3d 252] Lenk, J.
The defendant appeals from his conviction of murder in the first degree, on a theory of deliberate premeditation, in the shooting death of Philip Meltzer. Although the defendant concedes that the evidence was sufficient to support the jury's verdict, and does not suggest that any error occurred at trial, he contends that the verdict was against the weight of the evidence. The defendant asks that we exercise our power under G. L. c. 278, § 33E, to order a new trial or to reduce his conviction to a lesser degree of guilt. Having reviewed the entire record, we decline to do so, and affirm the defendant's conviction.
Because the defendant maintains that the verdict was against the weight of the evidence, we summarize that evidence without drawing all inferences favorable to the Commonwealth. See Commonwealth
v. Franklin, 465 Mass. 895, 896, 992 N.E.2d 319 (2013).
On May 29, 2010, the defendant's sister, Angelie Ortiz, was kidnapped by her former boy friend, Gilberto Cartagena. Cartagena trapped Angelie and their two year old son in a van and drove to the Lowell home of his acquaintance, Timothy Brown. Brown got into the van with Angelie and Cartagena and drove them to Lawrence. Brown had given Cartagena a gun, and on the way to Lawrence, Cartagena pointed the gun at different parts of Angelie's body, including her genitals, and threatened to kill her.
[20 N.E.3d 253] At some point, Angelie inadvertently dialed her brother's telephone number. A resulting message on the defendant's telephone's voicemail recorded Angelie crying and screaming for several minutes.
In Lawrence, Angelie escaped with her son. She arranged for the defendant to meet them, and the defendant drove them to Angelie's aunt's home. Angelie told the defendant that Cartagena had kidnapped her and her son and had threatened her with a gun.
In the early hours of May 30, 2010, the defendant picked up Angelie and their cousin, Luis Fontanez. Angelie and Fontanez believed that they were driving to New Hampshire. On the way, Angelie, Fontanez, and the defendant stopped at a wake, where the defendant had a drink. Angelie told guests at the wake that she had been kidnapped. She also gave the defendant ...