Com. v. Medina

• Decision Date: 05 May 1980
• Citation: 380 Mass. 565,404 N.E.2d 1228
• Parties: COMMONWEALTH v. Roberto MEDINA. COMMONWEALTH v. Erasmo SOTO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1228

404 N.E.2d 1228

380 Mass. 565

COMMONWEALTH v. Roberto MEDINA.

COMMONWEALTH v. Erasmo SOTO.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 9, 1980 and April 7, 1980.

Decided May 5, 1980.

James A. O'Donovan, Boston, for Roberto Medina.

Richard A. Gordon (James A. O'Donovan, Boston, with him), for Erasmo Soto.

Daniel C. Mullane, Asst. Dist. Atty. (Rosalind Henson Miller, Boston, Legal Asst. to the Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, LIACOS and ABRAMS, JJ.

KAPLAN, Justice.

The defendants Roberto Medina and Erasmo Soto, after a joint trial in September, 1975, for the murder in December, 1974, of Ana Ausua, were found guilty, respectively, of murder in the first and second degree. Their appeals (G.L. c. 278, §§ 33A-33G; St.1979, c. 346; Mass.R.A.P. 1B), bring us questions of the correctness of rulings by the trial judge on motions for directed verdicts of acquittal, of his instructions to the jury, and of his denials of certain claims for post-judgment relief. The defendants' appeals were briefed and argued separately and at different times, but it is convenient to dispose of them in a single opinion. We should say, however, that no charge of conspiracy or joint venture was made, and the responsibility of each defendant thus depends wholly on his individual acts.

We shall conclude that the judgment of conviction of Medina should stand, but that, on a review of the case under G.L. c. 278, § 33E, Soto's case should stand for a new trial.

We first describe in some detail the testimony at trial, and then pass to the claims of error and the § 33E review.

1. Narrative. (a) Commonwealth's evidence. The victim's sister Ama Lagares gave testimony as follows. Around 4 P.M., December 25, 1974, she accompanied the victim and three of the victim's children to 26 Walden Street (at a housing project in Jamaica Plain). They were in search of Soto: the purpose was to "show" the youngest child, four year old Ana Marisa Soto, to her father, who had lived with the victim (in Puerto Rico and Boston) for more than three years before their recent separation in November, 1974. Arriving at 26 Walden, and calling for Soto, they heard a female voice, presumably from the third-floor apartment of Carmen Amaro, saying that Soto was not there. Then, without provocation, Medina and three others (Medina's sister Virginia Gomez, Soto's new companion Juanita Amaro, and Carmen Amaro), came downstairs and into the yard. Medina struck Lagares; Juanita hit her on the head with a shoe. Lagares required treatment that afternoon at Peter Bent Brigham Hospital.

Lagares went on to testify that about 9 P.M. that night Medina, brandishing a knife and looking for the victim, showed up at the apartment of Carmen Rodriguez, where the victim and others were having a Christmas party. He was driven away.

Later that evening, about 11 P.M., the victim, the witness Lagares, Lydia Perez, and four or five children passed 26 Walden on their way to Natividad Rosa's house, and were suddenly attacked by the same group that had started the earlier fracas, together with some others. As the victim was pushed to the ground and surrounded, the witness ran and hid behind a parked car nearby. From that haven she saw Medina strike the victim repeatedly with a baseball bat. The bat broke, but Medina evidently struck her with the haft. Somehow, according to Lagares, the victim after this beating managed to get to her feet and tried to cross the street; she fell midway.

Then Soto, whom Lagares had not observed among those attacking the victim, drove up in a black car with another person. He left the car holding a rope, bound the victim with it around her middle, and tied the other end to the rear of the car. He entered the car, and drove it a short distance, dragging the victim along the street. Soto untied the victim, retrieving the rope, put the car in reverse, and "drove the car over her." Soto walked away; the other person drove off. Lagares ran home, finding Lydia Perez and police already there.

The prosecution called the victim's son Luis Martinez, twelve years old at the time of the incident. He had been living with Lagares since his mother's death. He was a difficult witness. There was a particularly severe language problem (like most of the other Hispanic witnesses, he had virtually no English); many questions he simply did not respond to. His story may be reconstructed thus. He was one of the children who accompanied the victim that night, and confirmed that she was set upon while passing by 26 Walden. Like Lagares, he hid behind a car. He saw Medina hit his mother once on the head with a bat, and she fell. The boy said he recognized Medina, Soto, Juanita Amaro, Maribella Muniz, and Virginia Gomez in the attacking group (but he did not testify to Soto's striking the victim). It was Medina who drove up in a car; Soto was his passenger. The car "passed over" the victim, then stopped. The two men left the car, tied the victim to the back of the car, reentered the car, dragged the victim the length of a block, stopped the car, untied her, and drove off.

Police officer Robert Dunford testified that, on patrol that night, he responded with his partner John Curley to a call for assistance at approximately 11:55 P.M., and found the victim lying in slush in the middle of Walden Street, and a baseball bat broken and stained with blood a short distance away; there was also a mop nearby. The victim was unconscious, bloodied at the head and eyes. A police ambulance was summoned and she was taken to Peter Bent Brigham Hospital. After speaking to persons on the scene, the officers went to Carmen Amaro's apartment at 26 Walden and spoke there to Maribella Muniz. Medina was also there. The right sleeve of his shirt was ripped from the elbow; his pants and shoes were wet, there was a puddle of water around his shoes. He gave his name falsely as Michael Davi.

A "criminalist" with the Boston police department, Leslie F. Wilson, had examined the corduroy jacket worn by the victim. It had various frayed areas. Besides stains of human blood, the garment showed black residue probably deriving from lubricating grease or petroleum products. The witness did not find rope fragments on the jacket. There were human blood stains on the two pieces of the baseball bat. Analysis indicated that stains on the haft came after the stains on the head of the bat.

Dr. Leonard Atkins, associate medical examiner for Suffolk County, performed an autopsy the morning of December 31, just following the death. He found many abrasions on the surface of the victim's body, some infected and showing pus. Examination of the spine revealed a dislocation of the third and fourth vertebrae at the neck, with a gap between them. The examiner opened the skull and found evidence of hemorrhaging throughout the occipital region (back of head). The undersurface of the brain was covered with a green pus a bacterial meningitis had set in. The lungs showed grayish granularity, indicating bronchopneumonia.

The primary cause of death, according to Dr. Atkins, was the cervical injury resulting from blunt force injury to the neck or head; the hemorrhaging was consistent with such a blow. The blunt force trauma, with ensuing extensive paralysis of functions, would probably itself have been sufficient to cause death. Pneumonia and meningitis were secondary or contributing causes of death. The victim would not have developed pneumonia except for the injury to the neck, and the same injury made her susceptible to meningitis infection. In the witness's opinion, bacteria probably entered into the victim's system through abrasions of the body, first infecting the abrasions, and then spreading to the area of the brain, resulting in the inflammation of the meninges called meningitis. The abrasions were consistent with the victim's being dragged or scraped, but the condition of her body was not consistent with her being run over by an automobile.

Dr. Clyde Lindquist, a general surgery resident, had the treatment of the victim from about the time of her admission to the hospital. The injury to the cervical vertebrae (he had placed it lower than C3-C4) paralyzed movement of her arms and legs, and destroyed her ability to breathe except with mechanical assistance. Dr. Lindquist attributed death to the spinal cord trauma. The victim had been treated generally for pneumonia rather "congestion" than pneumonia. This would not have developed in the absence of the major difficulty, the neck injury. As to the meningitis discovered by autopsy, the witness said a spinal tap, made when the victim was first placed in cervical traction, was clear, without purulence; thus the meningitis must have arisen later. Undiscovered, it had not been treated. Referring to the abrasions, Lindquist said they were like "mat burns," with the skin rough and abraded.

(b) Evidence for the defense. Medina testified thus. On the afternoon of December 25, the victim, Lagares, and Lydia Perez appeared at Carmen Amaro's apartment at 26 Walden in search of Soto and Juanita Amaro. Learning that Soto was not there, they went downstairs and broke windows and did other mischief. Medina, Juanita Amaro, Carmen Amaro, and Virginia Gomez, who had been in the apartment, ran downstairs, and an altercation followed, but Medina said he acted as peacemaker. He agreed Juanita had hit Lagares with a shoe.

Medina said that around 11 P.M. he was attending a Christmas party at the same apartment. Soto, Juanita Amaro, Carmen Amaro, Virginia Gomez, Maribella Muniz, and others were there. The victim and her boyfriend (not otherwise identified) appeared in the hallway and banged on the door. The victim was carrying a small axe, and her boyfriend, a baseball bat. Thereupon those at the party chased the intruders downstairs to the street. The exceptions were Soto and Juanita Amaro, who remained...