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Commonwealth v. Facella

Supreme Judicial Court of Massachusetts, Essex

November 21, 2017


          Heard: May 5, 2017.

         Indictment found and returned in the Superior Court Department on May 15, 2002.

         The case was tried before David A. Lowy, J.

          Brian J. Kelly for the defendant.

          Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Lenk, Hines, Gaziano, & Cypher, JJ. [1]

          CYPHER, J.

         A jury convicted the defendant, Joseph Facella, of murder in the first degree on a theory of extreme atrocity and cruelty for beating his girl friend, Annette Soares, to death in 2002.[2] At trial, his defense was that an antiviral drug he was taking at the time of the killing rendered him unable to appreciate the wrongfulness of his conduct or to conform his behavior to the requirements of the law. To rebut this defense, the Commonwealth presented evidence that the defendant, before ever taking the drug, had beaten and threatened to kill two other women with whom he was romantically involved between 1978 and 1989.

         The defendant makes four arguments on appeal: (1) the trial judge erred by admitting evidence in the Commonwealth's case-in-chief of the defendant's previous incarceration; (2) the trial judge erred by giving untimely limiting instructions regarding prior bad act evidence admitted in the Commonwealth's case-in-chief;[3] (3) the trial judge erred by admitting evidence of the defendant's prior bad acts in the Commonwealth's rebuttal case; and (4) this court should exercise its power under G. L. c. 278, § 33E (§ 33E), to reduce the verdict or order a new trial. Following oral argument, the defendant also filed a motion for a new trial claiming ineffective assistance of counsel.

         After careful consideration of the defendant's arguments on appeal and in his motion for a new trial, we affirm the judgment of conviction, deny the defendant's motion for a new trial, and decline to exercise our power under § 33E.


         We begin by discussing the facts presented in the Commonwealth's case-in-chief as the jury could have found them. We then discuss the defense case. We reserve other facts, including the evidence admitted in the Commonwealth's rebuttal case, for later discussion.

         1. Commonwealth's case-in-chief.

         a. Emergency room.

         At around 9:30 P.M. on April 25, 2002, the defendant walked into the emergency room at the Merrimack Valley Hospital. He told the triage nurse that he had "somebody" who "wasn't breathing" in the back seat of his motor vehicle. Emergency room personnel immediately went outside and observed the victim lying face down and "wedged down tight" between the front and back seats of the vehicle. The victim was topless, had no pulse, and was "very badly bruised . . . [a]ll over her body."

         Once the victim was removed from the car and brought inside the hospital, it became apparent that she had severe blunt force trauma to her face and head. The swelling was so extreme that the victim's head was swollen to "twice or three times the normal size" and her facial features were impossible to discern. A medical team immediately began resuscitation efforts.

         When hospital personnel asked the defendant what happened, he initially said that he had found the victim outside in that condition and that Billerica police were responsible. The defendant repeatedly interrupted the resuscitation efforts to ask whether the victim would be alright. A triage nurse testified that the defendant smelled of alcohol and appeared to be under the influence of alcohol, but not extremely so.

         Within one hour, the victim's pulse was restored, but she was breathing only with the assistance of a ventilator. However, testing showed that the victim had suffered serious brain injuries and had blood in her brain, so doctors decided to transfer her to a hospital in Boston for further treatment.

         b. Police interviews.

         Before the victim was transferred to Boston, Haverhill police arrived and spoke with the defendant about what happened. He first told one detective that he had not seen the victim for at least three days beforehand, but that he thought she might have disappeared on a drinking binge. The defendant said the victim had driven herself home, and then "came staggering into" the condominium they shared at around 8:30 P.M. looking like she had been beaten up. He said he helped her to the couch, then realized later that she was not breathing, so he drove her to the hospital.

         The defendant then told police that he had found the victim "wandering around the back yard in this condition." He said he helped her inside, laid her on the couch, and noticed a couple of hours later that she was not breathing. The defendant told police a third version of events, in which the victim arrived home "beat up" and "drunk, " at which point they had a conversation in the living room before she passed out on the floor. Throughout the initial conversations with police, the defendant paced around the room, acted "very nervous, " and frequently asked how the victim was and what was going to happen to him.

         At the hospital, police noticed that the defendant's hands and knuckles were swollen. Police also noticed red marks on his knuckles, and dried blood on his ear, chest, shoulder, and arm. At that point, police advised the defendant of his Miranda rights, but he was not placed under arrest.

         The defendant subsequently followed police to the Haverhill police station, where he was interviewed for approximately sixty to ninety minutes. The defendant agreed to speak with police, but refused to sign an advice of rights form. His statements during the interview were essentially cumulative of other versions of events he had already told police. The defendant denied having hit the victim.

         After the interview, police and the defendant spoke with the Boston hospital and learned that the victim had been pronounced dead. The defendant was arrested.

         c. Autopsy.

         The medical examiner testified to the numerous injuries that he observed during the autopsy. In particular, the victim's head injuries included: a four-inch contusion on the back of the head, bruising in the deep layers of the scalp, a hemorrhage underneath the scalp, a scrape or abrasion near the right eye, a contusion extending from the right eyelid onto the right side of the forehead, a two and one half inch contusion on the chin, a scrape on the lower lip, swelling and discoloration on the left side of the forehead, a contusion to the left ear, and multiple bruises inside the mouth and underneath the lips.

         The victim also suffered several wounds to other parts of her body, including: hemorrhages in the neck, collar bone, jaw, trachea, and larynx areas; eight or more bruise sites on the back; contusions to the buttocks and thigh areas; and various bruising or contusions to the arms, hands, legs, and feet. Some of these were consistent with defensive injuries.

         The medical examiner opined that the victim suffered multiple blunt force injuries to the head, and three or more separate impacts to the neck. He concluded that she died from brain hemorrhaging, which caused brain swelling, resulting in respiratory or cardiac arrest.

         d. Other physical evidence.

         Police observed injuries to the defendant as well. They noted a scratch or abrasion beneath his tailbone, red marks and bruises on his arms and hands, a cut on his finger, along with bruising and other marks on his legs. Police also observed reddish-brown staining on the defendant's ear, left shoulder, and buttocks which later tested positive for blood.

         Additionally, police tested clothing, surfaces, and other items inside the condominium for the presence of blood. Some facial tissues recovered from the fireplace, a stained men's gray shirt, discovered in a hamper, and the defendant's sneakers all tested positive for blood. Among the surfaces that tested positive for blood were the kitchen floor, the kitchen sink, the carpet leading to and inside the living room, a second-floor wall, the master bedroom, and a second-floor office area. A State police criminalistics expert testified about ...

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