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Commonwealth v. Mazariego

Supreme Judicial Court of Massachusetts, Worcester

March 31, 2016

Edwin Mazariego

         Argued January 12, 2016.

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          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.

         Present: Gants, C.J., Spina, Cordy, Duffly, & Lenk, JJ.


          [47 N.E.3d 423] 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 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 conviction 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 two other people, one a woman, standing at the corner of Benefit and

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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 the 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.

          [47 N.E.3d 424] 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 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

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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 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 that 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. Vertical drips of dried blood on her legs suggested that the victim [47 N.E.3d 425] 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

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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 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, 393 N.E.2d 370 (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, 622 N.E.2d 632 (1993).

         a. Penetration and lack of consent.

         The Commonwealth must prove some degree of penetration, Commonwealth v. King, 445 Mass. 217, 221-222, 834 N.E.2d 1175 (2005), cert. denied, 546 U.S. 1216, 126 S.Ct. 1433, 164 L.Ed.2d 136 (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, 437 N.E.2d 224 (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 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

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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 [47 N.E.3d 426] condom found at the scene. The defendant has distorted the Latimore analysis ...

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