Com. v. Lao

• Decision Date: 10 December 2007
• Docket Number: SJC-09947.
• Citation: 450 Mass. 215,877 N.E.2d 557
• Parties: COMMONWEALTH v. Agapito LAO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

877 N.E.2d 557

450 Mass. 215

COMMONWEALTH v. Agapito LAO.

SJC-09947.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued October 2, 2007.

Decided December 10, 2007.

Greg T. Schubert for the defendant.

Paul B. Linn, Assistant District Attorney (Dennis H. Collins, Assistant District Attorney, with him) for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

SPINA, J.

In 2002, a jury in the Superior Court convicted the defendant of murder in the first degree on a theory of deliberate premeditation for the strangulation death of his estranged wife. We affirmed the conviction and denied relief after reviewing the entire record pursuant to G.L. c. 278, § 33E. See Commonwealth v. Lao, 443 Mass. 770, 824 N.E.2d 821 (2005). In January, 2006, the defendant, represented by new counsel, filed a motion for a new trial on the ground that his appellate attorney had been ineffective for failing to raise an argument that the admission of certain statements made by his estranged wife under the "excited utterances" exception to the hearsay rule violated his constitutional right to confrontation as set forth in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (Crawford), and Commonwealth v. Gonsalves, 445 Mass. 1, 833 N.E.2d 549 (2005), cert. denied, ___ U.S. ___, 126 S.Ct. 2980, 165 L.Ed.2d 990 and ___ U.S. ___, 126 S.Ct. 2982, 165 L.Ed.2d 989 (2006). The motion was denied by the trial judge.¹ The defendant then sought leave to appeal by petitioning a single justice of this court pursuant to the "gatekeeper" provision of G.L. c. 278, § 33E.² The single justice allowed the petition.³ For the reasons that follow, we conclude that the judge's order denying the defendant's motion for a new trial must be reversed.

1. Factual background. We summarize the facts from the court's opinion in Commonwealth v. Lao, supra at 770-775, 824 N.E.2d 821. The defendant and his wife, Alicia, were separated and had been living apart for approximately one and one-half years before her murder. Even after the defendant moved out of the marital home in Chelsea, the couple stayed in regular contact and had frequent arguments.

On the evening of April 30, 2000, the defendant and Alicia went out to dinner, purportedly to discuss their divorce and the fact that Alicia's boy friend would be moving in with her the next day. When she returned home, Alicia was distraught she told her teenage daughter, Yessenia, that when the defendant dropped her off, he had tried to run her over with his car. Still crying, Alicia paged the defendant several times. When he answered her page, Alicia asked the defendant why he had tried to run her over, and she threatened to kill him. After the defendant hung up on her, Alicia paged him several more times, but he did not respond. Still upset, Alicia telephoned her mother and recounted what had happened with the defendant. Alicia then made a 911 call to the police. When the police responded to her home, Alicia explained to Officer Eugene Bonita the events that had transpired that evening. Officer Bonita advised Alicia of the process for obtaining a protective order, but she declined to pursue that avenue and said that she would telephone if she needed further police assistance. The evidence supporting these details, and the basis for its admissibility, is the focus of this appeal, and is more fully set forth in the next section of this opinion.

On the morning of May 2, 2000, Alicia's boy friend, Ramon Rodriguez, entered Alicia's apartment and found her lying unconscious across the bed surrounded by blood. He immediately telephoned 911 (at approximately 10:13 A.M.), tried to administer cardiopulmonary resuscitation (CPR), and waited for the police. Emergency personnel arrived on the scene within minutes, began to perform CPR, and took Alicia to a hospital where she survived in the intensive care unit for nearly two weeks with no brain activity. She was pronounced dead on May 17, 2000.

Between 9 and 9:30 A.M. on May 2, 2000, Jose Santiago and his brother, Carlos Merced, were examining and repairing a tire on a car parked near Alicia's home at 122 Bellingham Street in Chelsea. Santiago's former wife and children lived in an apartment at that address, and he had driven over to pay the rent to his wife's landlord, Francisco Guzman. As Santiago walked to the back of the house, he passed the defendant, whom he had known for several years, and who was walking down the driveway away from the house in the direction of the street. The two men greeted each other. When Santiago reached the rear of the house, he noticed that the back door was open. Concerned for his daughters, Santiago asked Guzman why he had left the door open, to which Guzman replied that he had just locked the door. Santiago then told Guzman, "Well, it must be [the defendant] because I saw him go by the driveway. I bumped into him." Not sure of the exact time of this encounter, Santiago estimated that he saw the defendant approximately thirty minutes before the police arrived. Santiago identified the defendant from a photographic array as the man that he had greeted that morning as the man walked down the driveway.

Later that same day, at approximately 2:30 P.M., the police stopped the defendant, and he voluntarily went to the police station. There, after receiving the Miranda warnings, he answered all questions posed by the police, and denied being anywhere in the vicinity of Alicia's apartment that morning. Instead, he claimed that he left his home around 8 A.M. and went to the South Bay Home Depot store to purchase a door for a job that he had in Waltham, at the home of Yolanda Louis. A store videotape showed that, at approximately 8:50 A.M. on May 2, an individual purchased the specific type of door that was installed at Louis's home and wheeled it out of the store. A receipt indicating that the door had been purchased at 8:50 A.M. on May 2, was found in the defendant's van. After buying the door, the defendant claimed that he had breakfast at a McDonald's restaurant in the East Boston section of Boston. At approximately 9:15 A.M., the defendant alleged that he telephoned Alicia from a nearby public telephone, spoke with her briefly about medical test results, drove to Waltham, arrived there about 10:30 A.M., and worked on installing the door until 2 P.M.

When the police investigated the crime scene, they found no signs of forced entry, the locks were not broken, and nothing was amiss inside the apartment, except for a knocked-over ashtray in the bedroom. The police discovered bloodstains only in the bedroom where Alicia's body was found. There were no fingerprints that could be lifted, and the footwear impressions taken by the police did not match any footwear taken from the defendant. Tests performed on the defendant's jacket, hat, gloves, and cellular telephone, all recovered from his van, and on the van itself, did not detect any blood.

The medical examiner opined that Alicia's injuries were consistent with someone's hands gripping and applying pressure around her neck. On May 18, 2000, Dr. Alexander Cherkov, a forensic pathologist, performed an autopsy on Alicia's body. He determined her cause of death to be "anoxic encephalopathy," meaning that Alicia's brain had been destroyed by the absence of oxygen caused by strangulation.

2. Challenged "excited utterances" made by victim. a. 911 call. On May 1, 2000, at approximately 12:10 A.M., Alicia dialed 911 and reported that the defendant had threatened to run her over with his car. The tape recording of Alicia's 911 call was played for the jury over the defendant's objection.

b. Statements to police. At a pretrial hearing, Officer Bonita testified that, upon his arrival at the house, Alicia told him that she had informed the defendant that she was filing for divorce and that her boy friend would be moving into her apartment the next day. Officer Bonita further testified that Alicia told him that, on returning home from her dinner with the defendant, she got out of his vehicle, he threatened her, he swerved the vehicle in her direction, and he sped off at a high rate of speed. The judge ruled that Officer Bonita's testimony was admissible under the "excited utterances" exception to the hearsay rule. At trial, Officer Bonita gave the same testimony with respect to the statements made to him by Alicia.

c. Statements to Yessenia Lao. During a midtrial voir dire, Yessenia testified that Alicia told her that she (Alicia) had told the defendant that she was divorcing him and that her boy friend would be moving in the next day. Yessenia also testified that Alicia told her that the defendant had tried to run over Alicia with his car after their dinner together. The judge ruled that Yessenia's testimony was admissible under the "excited utterances" exception to the hearsay rule. At trial, however, her testimony was somewhat different from that given during voir dire. Yessenia testified at trial that her mother and the defendant had gone out to dinner together on April 30, 2000. She stated that when Alicia got home, she awoke Yessenia, crying, and she told Yessenia that the defendant had tried to run her over with his car. Yessenia further testified that, once the police arrived at their home, Alicia told the officer that she (Alicia) and the defendant had gone out to dinner, that they had talked about divorce papers and about Alicia's boy friend moving into her apartment, and that the defendant had tried to run over Alicia in his car. Yessenia did not testify, as she had during voir dire, that Alicia had told her that she (Alicia) had told the defendant that she was divorcing him and that her boy friend would be moving in the next day.

3. Standard of review. Pursuant to Mass. R.Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001), a judge "may grant a new trial at any time if it appears that justice may not have been done." "A ...