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Commonwealth v. Collazo

Supreme Judicial Court of Massachusetts, Essex

February 20, 2019

COMMONWEALTH
v.
JOSE I. COLLAZO.

          Heard: December 7, 2018

         Indictments found and returned in the Superior Court Department on April 3, 2009.

         The cases were tried before David A. Lowy, J.

          Elizabeth A. Billowitz for the defendant.

          Marina Moriarty, Assistant District Attorney, for the Commonwealth.

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

          BUDD, J.

         Following a jury trial, the defendant, Jose I. Collazo, was convicted of murder in the first degree on a theory of deliberate premeditation, in connection with the shooting death of Jose Fuentes, and of carrying a firearm without a license in violation of G. L. c. 269, § 10 (a.), [1] On appeal, the defendant argues evidentiary errors as well as improper argument during the prosecutor's closing, all of which he claims require a reversal of his convictions. Alternatively, the defendant requests that we exercise our authority under G. L. c. 278, § 33E, to reduce the verdict of murder in the first degree because the evidence is insufficient to establish deliberate premeditation. Upon full review of the record, we affirm and decline to reduce his murder conviction under § 33E.

         Background.

         We summarize the facts as the jury could have found them, reserving certain details for discussion infra. On February 13, 2009, the defendant's former girlfriend, Sandra Fajardo, ended her dating relationship with the defendant and immediately started dating the victim. On the evening of February 20, 2009, the victim, Fajardo, Fajardo's two young children, and Fajardo's friend Jenny Albizu were at the apartment that Fajardo and the defendant recently had rented. Sometime after midnight, Fajardo, the victim, and Albizu heard someone knocking on the back door and the windows of the basement apartment. Fajardo told the victim not to go outside to see who was knocking because she thought it was the defendant.

         Early the following morning, the defendant telephoned his friend, Jamie Fekeris, to ask what kind of automobile the victim drove. After Fekeris provided the defendant with this information, the defendant stated, "I'm going to get that fucker." Between approximately 8 A.M. and 8:30 A.M., the defendant asked the landlord to help him access the apartment, telling the landlord that Fajardo was out of town. The landlord, who had rented the apartment to both Fajardo and the defendant days before, gave the defendant access to the basement and provided him with a butter knife to force open the lock on the door to the apartment.

         The defendant entered the apartment, greeted Albizu, and proceeded to walk to the bedroom where Fajardo, her two children, and the victim were sleeping. Witnesses heard gunshots and screaming. First responders found the victim lying on the bed in a pool of blood. An autopsy revealed that the victim suffered four gunshot wounds and blunt trauma to the head.

         Approximately ten to twenty minutes after his first telephone call to Fekeris, the defendant called Fekeris again and told him, "I just merked him." Fekeris understood the term "merk" to mean "kill." The defendant went to Alyssa Hooper and Samantha Witham's apartment, which was located nearby. While there, the defendant appeared upset and agitated. He asked Hooper if she had any bleach that he could use to wash his hands because he thought there was blood on them. The defendant washed his hands and told Hooper and Witham that he would pay them to drive him to New York. During the drive to New York, the defendant told Hooper and Witham that he killed the victim. On March 4, 2009, the defendant surrendered to New York City police after learning that there was a warrant for his arrest. During questioning with Massachusetts State police, the defendant claimed to have been in New York City at the time the victim was killed.

         At trial, the defendant mounted a heat of passion defense, conceding that he beat and shot the victim, but only did so because he "went crazy" when he ...


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