Supreme Judicial Court of Massachusetts, Worcester
January 12, 2016.
Indictments found and returned in the Superior Court
Department on June 14, 2010.
pretrial motion to suppress evidence was heard by James
R. Lemire, J., and the cases were tried before David
M. McCarthy for the defendant.
M. Oftring, Assistant District Attorney, for the
Gants, C.J., Spina, Cordy, Duffly, & Lenk, JJ.
N.E.3d 423] Spina, J.
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.
jury could have found the following facts. We reserve other
details for discussion of particular issues.
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
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.
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
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.
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
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
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.
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.
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
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.
Motion for required finding.
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).
Penetration and lack of consent.
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
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
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 ...