Com. v. Lamrini

• Decision Date: 09 July 1984
• Citation: 392 Mass. 427,467 N.E.2d 95
• Parties: COMMONWEALTH v. Zakia LAMRINI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 95

467 N.E.2d 95

392 Mass. 427

COMMONWEALTH v. Zakia LAMRINI.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Nov. 7, 1983.

Decided July 9, 1984.

Nancy Gertner, Boston (Judith H. Mizner, Boston, with her), for defendant.

Jeffrey B. Abramson, Asst. Dist. Atty. (Margot Botsford, Asst. Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.

ABRAMS, Justice.

After a jury trial, at which the main issue was self-defense, the defendant, Zakia Lamrini, was convicted of murder in the first degree. Lamrini appeals. She claims error concerning the denial of her motion for required findings of not guilty on so much of the indictment as charged murder in the first degree and murder in the second degree and in the prosecutor's summation. Lamrini also requests that we exercise our power under G.L. c. 278, § 33E, and direct the entry of a verdict of a lesser degree of guilt, namely manslaughter. Because the judge permitted argument on robbery as the motive for the crime in the absence of evidence to support such an inference, we conclude that there was a substantial risk of a miscarriage of justice, requiring a new trial. G.L. c. 278, § 33E.

We summarize the evidence. The victim was seen alive at 7:30 P.M. on March 8, 1981, at the Saxon restaurant on Tremont Street in downtown Boston. He arrived there between 6 and 7 P.M., accompanied by a friend, who testified that he saw the victim and the defendant talking. At approximately 7:15 P.M., the defendant left the restaurant. The victim followed about ten to fifteen minutes thereafter.

At approximately 8:15 P.M., the victim's body was discovered by a Metropolitan District Commission police officer who was patrolling the Sandy Beach area of the Mystic Lakes in Winchester. The cause of death was two stab wounds. The medical examiner opined that both wounds were caused by the same plunge of the instrument. There were numerous other stab wounds to the victim's back, but those wounds were not necessarily fatal. The victim had seventeen dollars in his pants pocket.

Stephen Gavrilles, a taxi driver who knew the defendant, received a call from his dispatcher at approximately 8 P.M. to proceed to 470 High Street in Medford. He found the defendant at that address. It was approximately 8:45 P.M. The defendant told him that a man had tried to rape and strangle her and that she had stabbed him.

Gavrilles said that the defendant's face was "puffed up," that she had a mud mark on her knee, and that her eye looked black. The defendant asked Gavrilles to take her to the site of the incident. She could not direct him to where it had taken place and, after driving by three wooded areas, he dropped her off at the Saxon restaurant.

The defendant then telephoned Officer William Dwyer of the Boston police vice squad, an officer whom she had assisted in a prior prosecution. She met with Officer Dwyer at approximately 9 P.M. and told him that the victim had forced her to have sex with him and had tried to strangle her.

Dwyer said that she told him that she had stabbed the victim maybe once or twice, and that she didn't know whether he was hurt. Dwyer said that the defendant believed the incident took place in Medford. Officer Dwyer telephoned the Medford police and inquired whether a stabbing had been reported. None had been reported. He told the defendant to report the matter to the Medford police and to keep in touch with him. Dwyer did not report the matter himself because he assumed it was not serious. Officer Dwyer said he saw bruises on the defendant's knees and thighs, blood spots on her pants, and a red mark on her neck.

Between 10:15 and 10:30 P.M., Gavrilles again picked up the defendant, this time at the Saxon restaurant, and drove her to the Homestead Motel in Cambridge where she registered around 2:20 A.M. After registration, Gavrilles and the defendant went across the street. Gavrilles telephoned the Medford police to ask about the stabbing. The Medford police still had no knowledge of any stabbing. Neither Gavrilles nor the defendant reported the incident.

On March 9, after learning that a man had been found dead in the Sandy Beach area of Winchester, the defendant reached Dwyer by telephone from a movie theatre and returned to his office at 10 P.M. There she was met by MDC Detective-Lieutenant William Kelly, who read the defendant the Miranda warnings and asked whether she would talk with him. The defendant stated, "I killed him in self-defense. I have got nothing to hide." The MDC officer arrested the defendant and again asked her if she understood the Miranda warnings. The defendant gave him an oral statement claiming she acted in self-defense. The defendant was then taken to the Old Colony Division of the MDC police where she gave a second and signed statement to Detective Francis Cullinan in the presence of three other officers.

The essence of the defendant's statement was that the victim picked her up and drove her to a remote area. She said that when she refused to remove her clothes and have sex with him the victim began to choke her. The defendant claimed that while struggling with the victim she pulled out a knife ¹ and stabbed him. The defendant left the area in the victim's car. As she drove, she threw the knife away. There were numerous inconsistencies between the first and second statements.

The evidence also disclosed that at 3:30 P.M., on March 9, a plainclothes MDC police detective went to the Homestead Motel where he inquired of the desk clerk whether the defendant was registered. He observed a woman, whom he later identified as the defendant, put a newspaper in front of her face and leave the lobby. The defendant spent part of March 9 with a friend, Steve Barros, who shopped with her for new clothes. She left the clothes she had worn on March 8, 1981, with Barros. Barros claimed that the defendant told him to get rid of the clothes. Subsequently, at the defendant's direction, police recovered the clothes from Barros. The defendant also met with Natalie Smith, a friend, who said that the defendant stated that she was giving the victim a "b.j." and that, after he threatened to strangle her, she stabbed him.

1. Denial of the motion for required findings of not guilty. The defendant argues that the evidence of mitigating circumstances is overwhelming, ² that it negates any inference of malice aforethought, deliberate premeditation, and extreme atrocity or cruelty. We do not agree.

To determine whether there is sufficient evidence of the defendant's guilt, we only review the evidence introduced up to the time the Commonwealth rests its case. See Commonwealth v. Kelley, 370 Mass. 147, 150, 346 N.E.2d 368 (1976). ³ We must determine "whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient ... to permit the jury to infer the existence of the essential elements of the crime charged in that indictment." Commonwealth v. Sandler, 368 Mass. 729, 740, 335 N.E.2d 903 (1975). Tested by this standard, "[t]he judge could not rightly have ruled that the evidence did not warrant a verdict of murder in the second or first degree. The injuries inflicted on the deceased showed a conscious and fixed purpose to kill continuing for a length of time and warranted a finding of murder with deliberately premeditated malice aforethought. Commonwealth v. Bartolini, 299 Mass. 503, 515-516 [, cert. denied, 304 U.S. 565 [58 S.Ct. 950, 82 L.Ed. 1531] (1938) ]. Commonwealth v. Brooks, 308 Mass. 367, 369 [1941]. These injuries also warranted a finding that the murder was committed with extreme atrocity and cruelty." Commonwealth v. Bonomi, 335 Mass. 327, 356, 140 N.E.2d 140 (1957), and cases cited therein. See Commonwealth v. Wilborne, 382 Mass. 241, 245, 415 N.E.2d 192 (1981). Even if we consider the defendant's motion at the close of all the evidence, there is no error in the denial of the defendant's motion. Jurors "are entitled to disbelieve the evidence that the defendant acted in self-defense. There is no constitutional principle which bars the conviction of a defendant when there is evidence warranting an inference of malice and also evidence warranting, but not requiring, a finding that the defendant acted in self-defense." Commonwealth v. Fluker, 377 Mass. 123, 128, 385 N.E.2d 256 (1979).

2. The prosecutor's summation. During closing argument, the prosecutor pointed to inconsistencies in versions of the defendant's story as evidence that the defendant had fabricated her self-defense story to cover up what had actually happened. "In closing argument, counsel may argue the evidence and the fair inferences which can be drawn from the evidence." Commonwealth v. Hoffer, 375 Mass. 369, 378, 377 N.E.2d 685 (1978). See Commonwealth v. Earltop, 372 Mass. 199, 205, 361 N.E.2d 220 (1977) (Hennessey, C.J., concurring). "Counsel may also attempt to assist the jury in their task of analyzing, evaluating, and applying evidence. Such assistance includes suggestions by counsel as to what conclusions the jury should draw from the evidence." Commonwealth v. Ferreira, 381 Mass. 306, 316, 409 N.E.2d 188 (1980).

Relying on Commonwealth v. Redmond, 370 Mass. 591, 351 N.E.2d 501 (1976), the defendant claims that the prosecutor's reference to robbery as the motive for the crime mandates reversal. ⁴ We do not agree. In Redmond, the prosecutor repeatedly asserted that the defendant was attempting to rape the victim when the murder took place despite the judge's suggestion that he "keep away from that." Id. at 595, 351 N.E.2d 501. The prosecutor's statement that a rape was in progress when the murder took place "was speculation and conjecture; there was no such evidence ...." Id. at 594, 351 N.E.2d 501. Moreover, the prosecutor in Redmond disregarded other rulings by the judge. "In such circumstances we have a duty to be...