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Commonwealth v. Diaz

Supreme Judicial Court of Massachusetts, Hampden

December 8, 2017

COMMONWEALTH
v.
FAUSTINO DIAZ, JR.

          Heard: September 8, 2017.

         Indictment found and returned in the Superior Court Department on February 15, 2013.

         The case was tried before Constance M. Sweeney, J.

          Andrew S. Crouch for the defendant.

          Katherine E. McMahon, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Lenk, Gaziano, Budd, & Kafker, JJ.

          GAZIANO, J.

         In January, 1991, the victim was found lying across her bed, with her face covered in blood, at a housing complex for the elderly in Springfield. She had been sexually assaulted and severely beaten. An autopsy determined that she had suffered numerous broken bones in her face, sternum, and ribs, and that she died as a result of blunt force trauma. Police interviewed individuals who knew the victim and also employees who worked at the complex, including maintenance, nursing, and cleaning staff. The defendant, who was a part-time maintenance worker there, was one of those interviewed. No arrests were made, and no suspect was identified.

         In 2012, Springfield police reopened the investigation. They sought to interview men, including the defendant, who had had access to the housing complex and to collect deoxyribonucleic acid (DNA) samples from them. Investigators visited the defendant at his place of employment, and he consented to the taking of a DNA sample. Approximately one month later, test results indicated that the defendant's DNA matched the DNA profile from sperm found in the victim's body. The defendant was arrested and indicted on charges of murder in the first degree and aggravated rape.[1] At trial, the Commonwealth proceeded on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder with aggravated rape as the predicate felony. A Superior Court jury found the defendant guilty of murder in the first degree on all three theories.

         On appeal, the defendant argues that the prosecutor presented arguments and asked the jury to draw inferences from facts that had been excluded from their consideration; made multiple misstatements of fact in her closing argument; suggested that she had personal knowledge of the case beyond the evidence that had been presented to the jury; argued in a manner designed to appeal to the jury's emotions and inflame the jury; and propounded medical theories based on facts that were not in evidence and were, at best, entirely speculative. The defendant contends that, as a result, a new trial is required. In addition, the defendant maintains that his trial counsel was ineffective for failing to object to the improper statements in the prosecutor's closing. The defendant also asks us to use our extraordinary power under G. L. c. 278, § 33E, to reduce the verdict. For the reasons that follow, we affirm the conviction and decline to exercise our authority to grant relief under G. L. c. 278, § 33E.

         1. Facts.

         We recite the facts the jury could have found, reserving some facts for later discussion of particular issues.

         a. Discovery of the victim's body.

         On Sunday, January 20, 1991, the victim's daughter-in-law went to the victim's apartment because the victim unexpectedly had not attended church services. The daughter-in-law entered the apartment and called for the victim, but received no reply. When she inserted her key in the front door lock, she noticed that the door felt unlocked. After looking through the living room, dining room, and kitchen, she also noticed that the back door was ajar, being held open by the deadbolt that was touching the doorjamb.

         In the bathroom, she found the victim's purse, wet, in the sink, and a towel in the toilet. Finally, she found the victim dead in the bedroom. The victim was lying face up with her head at the foot of the bed; her face was covered in blood, and her head was in a pool of blood on a pillow. The victim's nightgown had been pushed up above her waist; her lower body was naked and her blood-stained underwear was on the floor near the bed.

         Crime scene investigators later found blood on the bathroom wall, and blood spatters on the wall, dresser, and curtains in the bedroom. They also found evidence of blood in the drains in the kitchen and bathroom sinks, and copious amounts of blood on the victim's face and hands and on the bedding.

         An autopsy showed that the victim died of blunt trauma from multiple injuries to her head and chest. Her nose was dislocated and broken, and seven other bones in her face were broken. There was bleeding from a head injury under her scalp, as well as injuries to her neck muscles that were not evident externally; part of her larynx had been crushed, and there was blood in her mouth and lungs. She also had four broken ribs and a broken sternum. Her ribs had been broken by blunt force trauma. There were hemorrhages in her eyes that were consistent with strangulation.

         In addition, there was a tear in her vaginal wall caused by blunt force and bleeding in her anal cavity. The medical examiner[2] took samples from a vaginal swab, an anorectal swab, and a perianal swab for an evidence collection kit.

         b. Initial investigation.

         Police found no sign of forced entry into the apartment, and officers conducted the investigation on the theory that either the victim knew her assailant or the assailant had had a key. They interviewed people who had known the victim and employees at the apartment complex and assisted living center.[3] The defendant was on the list of employees to be interviewed because he was a part-time maintenance worker at the complex and had specific duties in the victim's building.

         On January 21, 1991, officers went to the defendant's house and asked him if he would come with them to the police station to assist with their investigation of a death of one of the residents at the apartment complex for the elderly. The defendant agreed to accompany them to the police station and speak with the officers; he was driven there in a police cruiser. When the officers informed the defendant of the victim's death, without having told him the circumstances of that death, the defendant broke down and cried for five minutes. The defendant said that he did not have a master key to the apartment units. The defendant was not a suspect at the time he gave his statement.

         A chemist from the State police crime laboratory (crime lab) examined the items from the evidence collection kit and found sperm cells on the vaginal swab, the vaginal smear, the anorectal swab, and the anorectal smear. He did not conduct DNA testing on any of this evidence. In 1991, the crime lab did not conduct any form of DNA testing; at that time, such testing was not commonly conducted in State police laboratories nationwide.[4]

         The crime lab began DNA testing in 2001. In 2002, a State police analyst performed DNA testing on the anorectal swab and developed a DNA profile for the ...


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