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Commonwealth v. Rosario

Supreme Judicial Court of Massachusetts, Middlesex

May 11, 2017


          Heard: November 8, 2016.

         Indictments found and returned in the Superior Court Department on June 30, 1982.

         A motion for a new trial, filed on October 19, 2012, was heard by Kathe M. Tuttman, J. The Supreme Judicial Court granted an application for direct appellate review.

          Jessica Langsam, Assistant District Attorney (Thomas F. 0'Reilly, Assistant District Attorney, also present) for the Commonwealth.

          Lisa M. Kavanaugh, Committee for Public Counsel Services (Andrea Petersen also present) for the defendant.

          M. Chris Fabricant, Karen Newirth, James C. Dugan, Vincent P. Iannece, Lara S. Kasten, & Kathryn J. Ranieri, of New York, Stephanie Roberts Hartung, & Sharon L. Beckman, for New England Innocence Project and others, amici curiae, submitted a brief.

          Present: Gants, C.J., Botsford, Hines, Gaziano, Lowy, & Budd, JJ. [1]

          BUDD, J.

          The defendant, Victor Rosario, was convicted in 1983 of one count of arson in a dwelling house and eight counts of murder in the second degree; all the charges stem from a fire that occurred in 1982. In 2012, the defendant filed the motion for a new trial at issue here, arguing principally that newly discovered evidence regarding fire science and the conditions under which he confessed to the crime warranted a new trial. Following an evidentiary hearing, a Superior Court judge who was not the trial judge allowed the motion, ruling that the defendant had presented newly discovered evidence, which cast real doubt on the justice of his convictions. The Commonwealth appealed. We allowed the defendant's application for direct appellate review, and we affirm the order allowing the defendant's motion for a new trial, but on different grounds.[2]


          1. Evidence presented at trial.

         We summarize relevant evidence introduced at trial. The fire started on the first floor of a multi-unit apartment building in Lowell, and was accompanied by the sound of breaking glass. The first telephone call to 911 was placed shortly after 1 A.M. on March 5, 1982. Police officers arrived, minutes later, to find the building "fully engulfed in flames." It took firefighters approximately one hour to get the fire under control. They recovered eight bodies from the building, all victims of the fire.

         Because of the rapid escalation of the fire and the associated deaths, the arson unit was called to the scene. Investigators found that the heaviest burning and charring was concentrated in the front, right, and left sides of the exterior and first-floor interior of the building. Based on the burn patterns in the front hallway, living room, and kitchen, investigators believed that the fire had been concentrated along the floor and baseboards. Although no wicks or flammable liquids were detected in the apartment, the investigators believed that the burn marks were consistent with flammable liquids with points of origin being the front hall and kitchen. Thus, they concluded that the fire was not accidental and could have been started by multiple incendiary devices, such as "Molotov cocktails."[3]

          There were several witnesses to the fire. One witness had seen three men standing in front of the building minutes before the fire; he said that he heard the sound of breaking glass and then saw a man with his arm raised.[4] A woman who lived across the street stated that the defendant used drugs at her apartment that night and that she saw him breaking windows after she learned of the fire. Red Cross workers treated the defendant for a cut on his hand at the scene and sent him to the hospital.

         This evidence led investigators to the defendant, who was interrogated by Lowell police officers at the fire department headquarters during the night of March 6 and into March 7. The defendant, whose first language was Spanish, was provided with a civilian interpreter.[5] Although the defendant appeared calm and responsive when he arrived at approximately 11 £.M., soon after that he indicated that he was beginning to hear voices, and his mental state deteriorated over the course of the night. A few hours into the interrogation, after the defendant had made two statements about the fire, one of the officers told the defendant that they had "certain information" and wanted "to know if he was part of it." The defendant broke down, sobbing and praying on the floor. The breakdown lasted ten to twenty minutes, but the defendant later appeared to recover.

         The questioning resulted in three statements prepared by the police interrogators and signed by the defendant. In the first, signed at approximately 12:15 A.M., the defendant admitted to being at the scene of the fire and stated he broke a window to help rescue children from the building. Hours later, he signed a second statement, admitting to being at the scene as a "look out" for two other men, one of whom threw a Molotov cocktail through a window in the building. Finally, toward the end of the questioning, the defendant signed a final statement indicating that he and the other two men threw Molotov cocktails into the building, starting the fire. The statement also said that before they had left for a bar that evening, he watched the two other men make three Molotov cocktails in the basement of his house;[6] they planned to start the fire because one of the men "wanted to get [one of the victims] over drugs." At approximately 6:30 A.M., the defendant was arrested after signing the final statement.

         Following his booking, the defendant descended into total incoherence. He repeatedly said that he was "the son of God, " believed that the back of his head had been cut off, and did not recognize his girl friend when she came to visit him. He eventually was transferred to the house of correction in Billerica for a psychiatric examination. State psychiatrists there and at Bridgewater State Hospital (hospital) diagnosed the defendant as psychotic. He was treated at the hospital and eventually recovered. His symptoms never recurred, and the defendant was deemed competent to stand trial.

         The defense theory of the case at trial was that the defendant was at the scene of the fire because he and his friends were walking home from a bar and stopped by a house close to the fire to purchase drugs. The defendant, who testified, told the jury that he hurt his hand when he broke a window in his attempt to rescue children from the flames. Both in a motion to suppress and at trial, the defense relied on the diagnosis of psychosis to argue that the defendant's statements during the interrogation were involuntary. The defendant testified that he did not remember making any of the statements attributed to him and that he had never heard of a Molotov cocktail before the interrogation. As the voluntariness of his confession was at issue throughout the trial, the trial judge instructed the jury on the humane practice rule.[7] During their deliberations, the jury requested, but were not provided, transcripts of the doctors' testimony, and the doctors' reports were not admitted into evidence. The jury convicted the defendant of arson and eight counts of murder in the second degree.

         2. The motion for new trial.

          In 2012, the defendant filed his motion for a new trial, citing newly discovered evidence. The motion judge conducted an evidentiary hearing over the course of six days in 2014. She ...

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