Heard: December 9, 2016.
found and returned in the Superior Court Department on August
cases were tried before Peter A. Velis, J., and a motion for
a new trial, filed on May 20, 2015, was considered by Mark D.
Pourinski for the defendant.
Bethany C. Lynch, Assistant District Attorney, for the
Present: Gants, C.J., Botsford, Lenk, Hines, & Gaziano,
early morning hours of July 12, 2009, a Springfield fire
department rescue squad responded to a house fire and found
the body of the defendant's estranged wife on the living
room floor. She was transported to a hospital where it was
determined that she had been strangled and stabbed. At trial,
the Commonwealth relied on circumstantial evidence to prove
that the defendant had entered the house, assaulted the
victim, and set the building on fire. A Superior Court jury
convicted the defendant of murder in the first degree on
theories of deliberate premeditation and extreme atrocity or
cruelty, arson of a dwelling house, and violating a G. L. c.
209A abuse prevention order.
appeal, the defendant claims that the evidence introduced at
trial was insufficient to support his convictions of murder
in the first degree and arson. In addition, he raises the
following claims of error: (1) expert witnesses were allowed
to testify about the substance of forensic testing results
obtained by other analysts, in violation of his right to
confrontation under the Sixth Amendment to the United States
Constitution; (2) his custodial statements to police were
obtained without a valid Miranda waiver and were involuntary;
and (3) the motion judge abused his discretion in denying the
defendant's motion for a new trial without an evidentiary
hearing. The defendant also asks that we grant him a new
trial or reduce the verdicts pursuant to our authority under
G. L. c. 278, § 33E. We affirm the convictions and
decline to reduce the degree of guilt or to order a new
recite the facts the jury could have found in the light most
favorable to the Commonwealth, see Commonwealth
v. Latimore, 378 Mass. 671, 676-677 (1979),
reserving certain facts for our discussion of the issues
raised. The defendant and the victim were married for
approximately fifteen years. They had one son together. The
victim also had three children prior to her marriage to the
October, 2008, the defendant and the victim separated, at
least in part because of the defendant's drug use. The
defendant moved from the house they had lived in to a mobile
home park a few miles away. In March, 2009, the victim
obtained an emergency abuse prevention order against the
defendant,  and in May, 2009, she filed for divorce At
the time of the victim's death, the defendant and the
victim shared physical and legal custody of Angel. The victim
initially had been granted sole physical custody, but the
custody order was modified approximately one month before her
death to provide that Angel would spend weekdays with his
mother and weekends with his father.
June, 2009, the defendant asked to meet with the victim to
discuss their relationship. She agreed to meet with the
defendant on July 9, 2009, despite the abuse prevention
order, so long as he brought his brother with him. The
defendant assented to this condition, but he arrived alone at
the meeting. He asked the victim if she were certain that she
wanted to follow through with the divorce. She said that she
was. The defendant also expressed a desire to move to Puerto
Rico with their son. The victim told the defendant that he
would have to make such a request to the court. Upon hearing
this, the defendant became visibly upset, slamming the door
as he left.
Saturday, July 11, 2009, the victim left a family gathering
around 11 £.M. and was dropped off at her house. At
approximately 11:20 P.M., the son called his half-sister, who
lived with the victim but was staying at a friend's house
that night. The defendant took the telephone from his son and
asked the half-sister where she was. When she replied that
she was at her friend's house, the defendant asked her
"if [she] left [her] mother home alone." She
answered, "No." This was a deliberate lie because
she did not want the defendant to know that the victim was
alone in the house.
11:24 P.M., a security camera at the mobile home park where
the defendant lived recorded an image of a sport utility
vehicle (SUV), consistent with the defendant's Hyundai
Santa Fe, being driven away. Six minutes later, at
approximately 11:30 P.M., one of the victim's neighbors
heard a woman scream. The scream came from the direction of
the corner of the street where the victim lived. The neighbor
then heard a man and a woman arguing. He looked out his
window and saw a man and a woman standing at the door of the
victim's house, arguing. He recognized the woman as his
neighbor. The neighbor described the man as light-skinned,
about five feet, eleven inches tall, and wearing a
light-colored or white T-shirt and dark shorts. The video
surveillance recording showed that the SUV returned to the
mobile home park approximately thirty minutes later, at 12:02
A.M. on July 12, 2009.
approximately midnight on July 12, 2009, one of the
victim's neighbors smelled smoke and discovered that it
was coming from the victim's house. Fire fighters
responded at 12:46 A.M. A rescue squad found the victim lying
unconscious in the living room, in front of her bedroom door.
Emergency personnel transported her to the hospital, where
she was pronounced dead. In addition to burns, she had
multiple blunt and sharp force injuries to her head, neck,
arms, right knee, chest, back, and hands. Her death was
caused by a combination of sharp force injuries to her left
lung, which caused it to collapse, and inhalation of soot and
smoke. Hospital staff notified police after they discovered
bruising and a ligature mark on the victim's neck.
A.M. on July 12, 2009, Springfield police officers went to
the defendant's trailer at the mobile home park. He
accompanied them to the police station, where he gave a
statement and provided a buccal swab. The officers noticed
that the defendant had bruises on the back of his right hand
and on his right wrist, and a wound on the webbing between
the thumb and index finger of his left hand.
fire investigators determined that the fire had been set
intentionally, and began in the victim's
defendant provided statements to police on July 12, 17, and
18, 2009. He said that, after his son went to bed, he drove
his Hyundai Santa Fe SUV to purchase four bags of heroin and
that, after returning home and injecting all four bags, he
went back to purchase two additional bags. Initially, the
defendant said that he had not been inside the victim's
house since April. In a later statement, he said that he and
the victim had been together in the victim's house at
approximately 3 or 4 P..M. On July 10, 2009, the day before
early morning hours of July 12, 2009, the front, back, and
side doors of the victim's house were locked. Keys to the
house were found behind it, near the front porch of a
neighboring house; they were "brand new" and were
found on top of leaves and sticks.
trial, the Commonwealth presented deoxyribonucleic acid (DNA)
evidence linking the defendant to the crimes. This included
evidence from a red-brown stain on the neck of a white
T-shirt discovered in the doorway of the victim's
bedroom. That stain contained a mixture of DNA; short tandem
repeat (STR) testing showed that the major DNA
profile matched the victim's profile, and that the
defendant was a potential contributor to the minor profile.
There was also another potential contributor to the mixture.
Another DNA sample was obtained from underneath one of the
fingernails on the victim's right hand. Y-chromosome STR
(Y-STR) testing showed that a the major profile from that
sample matched the Y-STR DNA profile of the defendant and his
paternal relatives. A third sample from the victim's neck
contained the Y-STR DNA profiles of at least three males; the
defendant and his paternal relatives could not be excluded
from this mixture.
Sufficiency of the evidence.
defendant argues that the trial judge erred in denying his
motions for required findings of not guilty, because the
evidence was insufficient as a matter of law to support his
convictions of murder in the first degree and arson.
reviewing the denial of a motion for a required finding of
not guilty, [this court] must determine whether the evidence,
including inferences that are not too remote according to the
usual course of events, read in the light most favorable to
the Commonwealth, was sufficient to satisfy a rational trier
of fact of each element of the crime beyond a reasonable
doubt" (citation omitted). Commonwealth
v. Zanetti, 454 Mass. 449, 454 (2009).
"[T]he evidence and the inferences permitted to be drawn
therefrom must be 'of sufficient force to bring minds of
ordinary intelligence and sagacity to the persuasion of
[guilt] beyond a reasonable doubt'" (citation
omitted). Latimore, 378 Mass. at 677.
carefully reviewed the trial record, we conclude that the
evidence introduced at trial was sufficient to support the
convictions of murder in the first degree on the theories of
deliberate premeditation and extreme atrocity or cruelty and
highlight some of the salient facts recited above. The
evidence indicated that the defendant had a motive for the
killing. Four months before the victim's death, the
victim obtained an emergency abuse prevention order against
the defendant after a history of domestic violence. A few
days before the victim's death, the defendant and the
victim had a conversation in which the defendant became
visibly "upset" and slammed a door upon hearing
from the victim that she would proceed with the divorce and
would contest his move to Puerto Rico with their son.
night of the stabbing, the defendant asked the victim's
daughter if the victim was alone in her house. Although the
defendant was misinformed that she was not, the victim indeed
was alone in the house at that point, for the first time
since she had obtained the abuse prevention order four months
earlier. Minutes after the conversation informing the
defendant that the victim was at her house, while the son was
asleep in the back room of the defendant's mobile home,
an SUV similar to the defendant's Hyundai Santa Fe left
the mobile home park. See Commonwealth v.
Phoenix, 409 Mass. 408, 430 (1991). Six minutes
later, a neighbor heard the victim scream, and then saw her
standing at her front door arguing with a man.
in the morning of July 12, 2009, police found the defendant
with injuries on both hands. His left hand tested positive
for the presence of blood. DNA evidence on a T-shirt found in
the doorway of the victim's bedroom, and on her body,
contained a mixture of DNA, including a major STR DNA profile
that matched the victim's profile and a minor profile
from which the defendant could not be excluded.
defendant made contradictory statements to police about his
whereabouts on the day prior to, and the day of, the killing,
that were contrary to testimony from the victim's
daughter and the victim's boy friend. See
Commonwealth v. Robles, 423 Mass. 62, 71 (1996)
("False statements to police may be considered as
consciousness of guilt if there is other evidence tending to
prove the falsity of the statements").
together, the evidence also was sufficient to support a
finding of extreme atrocity or cruelty. The victim had blunt
force injuries to both sides of her head, her right eye, both
arms, and her right knee, and a ligature mark on her neck.
She also was stabbed forty-five times, including stab wounds
to her neck and through her left lung. Her arms and legs were
burned, and she inhaled soot and smoke, which contributed to
her death, indicating that she was alive after having been
repeatedly stabbed and beaten, and while the fire burned
around her. In light of this, the defendant's argument
that the Commonwealth did not meet its burden of proof
because the evidence was circumstantial in nature, or because
there was no blood or soot in the defendant's vehicle, or
on his person or clothing, on the morning after the fire, is
unavailing. Viewed in the light most favorable to the
Commonwealth, the evidence was sufficient to support the
convictions. See Commonwealth v. Lao, 443 Mass. 770,
779-780 (2005), S.C., 4 ...