Heard: May 5, 2017.
found and returned in the Superior Court Department on May
case was tried before David A. Lowy, J.
J. Kelly for the defendant.
Catherine Langevin Semel, Assistant District Attorney, for
Present: Gants, C.J., Lenk, Hines, Gaziano, & Cypher, JJ.
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. 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.
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) 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.
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 §
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.
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
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
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.
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.
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.
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.
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.
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.
the interview, police and the defendant spoke with the Boston
hospital and learned that the victim had been pronounced
dead. The defendant was arrested.
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.
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.
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.
Other physical evidence.
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
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