Com. v. Marrero

• Decision Date: 12 March 1998
• Citation: 427 Mass. 65,691 N.E.2d 918
• Parties: COMMONWEALTH v. Elvio J. MARRERO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 918

691 N.E.2d 918

427 Mass. 65

COMMONWEALTH v. Elvio J. MARRERO.

Supreme Judicial Court of Massachusetts,

Franklin.

Argued Nov. 3, 1997.

Decided March 12, 1998.

Roger A. Cox, Ashland, for defendant.

Renee L. Steese, Assistant District Attorney, for the Commonwealth.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY, MARSHALL and IRELAND, JJ.

ABRAMS, Justice.

The defendant, Elvio J. Marrero, appeals from his conviction of murder in the first degree by reason of deliberate premeditation and extreme atrocity or cruelty. The defendant claims that the trial judge erred in admitting evidence of the defendant's prior bad acts of violence and drug dealing. The defendant also claims that the judge's instructions to the jury were flawed because the instructions did not properly limit the use the jury could make of the bad acts evidence and did not instruct the jurors that any inferences they drew had to be established beyond a reasonable doubt. For the reasons stated hereafter, we affirm the defendant's conviction. We decline to exercise our power under G.L. c. 278, § 33E, in the defendant's favor to order a new trial or enter a verdict of a lesser degree of guilt.

1. Facts. We set forth the facts in the light most favorable to the Commonwealth. See Commonwealth v. Salemme, 395 Mass. 594, 595, 481 N.E.2d 471 (1985). The victim, Pernell R. Kimplin, was found dead in his apartment in Greenfield on October 16, 1994. He was gagged, and his hands and feet were "hog-tied" with electrical cords and rope. He had been stabbed once in the chest and once in the back. He also had been beaten about his head, neck, shoulders, and back with a wooden board broken from a dresser drawer. The medical examiner opined that the victim died on or about October 14, 1994, as a result of the stab wounds.

The victim was last seen alive on the evening of October 13, 1994, in his apartment. The defendant was also at the victim's apartment and was planning to spend the night there. Early the next morning, the defendant asked several acquaintances for a ride to Chicopee. At that time the defendant had blood on his hands and arms, and appeared very nervous. He told one of his acquaintances that he spent the night at the victim's apartment, the police were after him, and the police hit him in the back of the head. On another occasion in mid-October, the defendant told another acquaintance that he just killed someone with a knife. He said that he needed money to buy an airplane ticket to the Dominican Republic.

The defendant, who was a crack cocaine dealer, regularly sold drugs to the victim. The victim often owed money to the defendant for the drugs. In September, 1994, the victim sought to purchase cocaine from the defendant on credit. The defendant refused and said that the victim already owed him $600. The defendant also had reason to believe that the victim had stolen drugs from him.

The defendant was detained on February 12, 1995, when he attempted to enter the United States at the John F. Kennedy International Airport in New York. He arrived on a flight originating in the Dominican Republic. The defendant carried the same black leather jacket that he had worn the night he stayed at the victim's apartment. Laboratory analysis revealed the presence of blood in several places on the jacket. The defendant also made several inconsistent statements to the authorities about when he left the United States, where he lived, and whether he had ever been to Greenfield. ¹

2. Prior bad acts evidence. The defendant contends that the judge erred in admitting testimony concerning prior bad acts of violence and drug dealing. The Commonwealth acknowledges that the testimony included prior bad acts by the defendant, but contends that the evidence was admissible, both to show the circumstances surrounding the murder and to show the defendant's motive, pattern of conduct, and intent. Moreover, the Commonwealth asserts that much of the contested testimony either was elicited by the defendant on cross-examination, or the door to it was opened by the defendant's cross-examination so that the Commonwealth could properly elicit it on redirect examination. We agree with the Commonwealth.

" 'Evidence of prior bad acts is not admissible to show that the defendant has a criminal propensity or is of bad character.' Commonwealth v. Robertson, 408 Mass. 747, 750, 563 N.E.2d 223 (1990). Such evidence, if relevant, may be admitted, however, if it is offered for a purpose other than impugning the defendant's character, and if its probative value is not substantially outweighed by any prejudice." Commonwealth v. Otsuki, 411 Mass. 218, 236, 581 N.E.2d 999 (1991). Such evidence may be used to prove common scheme, pattern of operation, identity, intent, or motive. Commonwealth v. Scott, 408 Mass. 811, 818, 564 N.E.2d 370 (1990). It also may be used where evidence of the prior bad acts is "inextricably intertwined with the description of events ... of the killing." Commonwealth v. Bradshaw, 385 Mass. 244, 269, 431 N.E.2d 880 (1982), quoting Commonwealth v. Hoffer, 375 Mass. 369, 373, 377 N.E.2d 685 (1978). "The prosecution [is] entitled to present as full a picture as possible of the events surrounding the incident itself." Bradshaw, supra at 269-270, 431 N.E.2d 880. See Commonwealth v. Chalifoux, 362 Mass. 811, 816, 291 N.E.2d 635 (1973). "Whether evidence is relevant in any particular instance, and whether the probative value of relevant evidence is outweighed by its prejudicial effect, are questions within the sound discretion of the judge.... [T]he judge's determination of these questions will be upheld on appeal absent palpable error." Commonwealth v. Valentin, 420 Mass. 263, 270, 649 N.E.2d 1079 (1995), quoting Commonwealth v. Dunn, 407 Mass. 798, 807, 556 N.E.2d 30 (1990).

a. The defendant argues that, generally, "the Commonwealth's witnesses supplied excessive detail about the crack-addicted underclass of Greenfield and how the defendant preyed upon it." The defendant asserts that this evidence unfairly prejudiced the jury. Most of the events germane to the murder, as well as the relationships among the defendant, the victim, and many of the witnesses, arose from, or were related to, the sale and use of illicit drugs.

The Commonwealth's theory of the case was that the defendant killed the victim either because the victim owed the defendant money for drugs or because the defendant believed that the victim had stolen his drugs. The defense strategy pointed to another of the defendant's drug customers as the likely perpetrator. In these circumstances, it was unavoidable that evidence of the defendant's drug business and his interactions with his customers would be admitted. ² The Commonwealth was entitled to establish before the jury a context for the killing. See Bradshaw, supra at 269-270, 431 N.E.2d 880; Chalifoux, supra. "Without the challenged evidence the killing could have appeared to the jury as an essentially inexplicable act of violence." Bradshaw, supra at 269, 431 N.E.2d 880.

b. The defendant particularly identifies the testimony of three drug customers of the defendant, Jerry Desbiens, Lynn Morehouse, and Glenn Otto, as unduly prejudicial. He asserts the admission of these witnesses' testimony requires reversal. We do not agree. We examine each witness's disputed testimony in turn.

Jerry Desbiens said that the defendant was a crack cocaine dealer and that the victim was one of the defendant's regular customers. He also said that he saw the defendant with the victim on the night of October 13, and that he (Desbiens) gave the defendant a ride to Chicopee the following morning. On cross-examination, Desbiens acknowledged that, speaking of the defendant, he told the police, "I want you to get him." On redirect, Desbiens said that he wanted the police to "get" the defendant for two reasons: because the victim did not "deserve[ ] what he got," and the defendant had threatened Desbiens with a knife a week or two before the murder because the defendant believed that Desbiens had stolen some cocaine from him. Desbiens further said that he defended himself with an axe handle and that the two men had worked out their dispute.

At trial, the defendant objected to Desbiens's testimony on redirect examination. The judge admitted the evidence, ruling that the testimony was proper because the defense had "thoroughly covered" the issue of the witness's bias against the defendant on cross-examination, and the Commonwealth should have the opportunity to explain the implication left by the defendant's cross-examination that the witness was biased against the defendant. There was no error.

"The purpose of redirect examination is to explain or rebut adverse testimony or inferences developed during cross-examination." Hoffer, supra at 375, 377 N.E.2d 685. "Having opened the door to this information the defendant essentially invited the Commonwealth to address the issue on redirect examination.... For this reason, the defendant's claim of prejudice is highly suspect." (Citation omitted). Otsuki, supra at 236, 581 N.E.2d 999. The defendant's cross-examination elicited evidence of the witness's bias against him. The Commonwealth was entitled to rehabilitate its witness. See Commonwealth v. Evans, 415 Mass. 422, 425-426, 614 N.E.2d 653 (1993); Commonwealth v. Errington, 390 Mass. 875, 880-881, 460 N.E.2d 598 (1984).

The defendant next asserts that the testimony of Lynn Morehouse was "murky character assassination" and should not have been admitted. Morehouse said that, at about 2 A.M. on October 14, the defendant climbed through her bathroom window, appeared upset, and asked her to go next door and ask Desbiens to give him a ride somewhere. Morehouse noticed dried blood on the defendant's arms and hands. On direct examination, Morehouse admitted that she did not initially tell the police everything she knew about this incident because she felt intimidated by ...