Com. v. Pimental

• Citation: 910 N.E.2d 366,454 Mass. 475
• Decision Date: 03 August 2009
• Docket Number: SJC-10077
• Parties: COMMONWEALTH v. Eric M. PIMENTAL.
• Court: United States State Supreme Judicial Court of Massachusetts

910 N.E.2d 366

454 Mass. 475

COMMONWEALTH v. Eric M. PIMENTAL.

SJC-10077

Supreme Judicial Court of Massachusetts, Plymouth.

Argued April 10, 2009.

Decided August 3, 2009.

Stephen Paul Maidman for the defendant.

Mary E. Lee, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., SPINA, COWIN, BOTSFORD, & GANTS, JJ.

BOTSFORD, J.

On the morning of June 10, 2004, Thomas Loftus was found beaten to death in a wooded area in Wareham. Evidence presented at trial showed that the defendant and a companion, Robert Silva, both participated in the attack, and that Silva then removed money and property from the victim and shared it with the defendant. A jury convicted the defendant of murder in the first degree committed with extreme atrocity or cruelty, and armed robbery. On appeal, the defendant argues that (1) he should have been permitted to introduce evidence of a prior event in which he prevented Silva from attacking another person; (2) his statements to police should not have been admitted, because they were not electronically recorded; (3) the evidence was insufficient to support either conviction; (4) the jury should have been instructed on assault and battery by means of a dangerous weapon, as a lesser included offense of murder; (5) the prosecutor made various inappropriate remarks in her closing argument; and (6) the jury should not have been instructed that they had an obligation to return a verdict of the highest degree of murder proved beyond a reasonable doubt. We reject the defendant's arguments, and after carefully reviewing the entire case, we decline to exercise our authority under G.L. c. 278, § 33E, to reduce the degree of guilt or order a new trial.

Background. Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following.

On the afternoon of June 9, 2004, the defendant, who was then eighteen years old, was drinking liquor at his home in Wareham. He left his home and met up with Silva, and the pair walked down a wooded path in Wareham, where they encountered the victim. The defendant was approximately six feet, two inches tall, weighed approximately 248 pounds, and wore size sixteen sneakers. Although he had been drinking, he did not have any difficulty speaking or walking. Silva was about five feet, eight inches tall, and 160 to 170 pounds; he was about the defendant's age. The victim was forty-seven years old, five feet, five inches tall, and weighed 126 pounds. At the time of the autopsy, the victim's blood alcohol level was .278 The defendant did not testify, but in the two days following the incident he made various statements to certain friends and family members, consistently indicating that the victim had initiated a confrontation. He told his cousin, Melissa Johnson, that the victim "flipped out on him." He told a longtime friend, Robert Surdam, that the victim "had gotten uppity and was getting in his face, saying, you know, `You don't know me. Who the hell are you?'" He told Katelyn Ouellette, his then girl friend, that the victim approached and asked him for money. He told the police that he said "[H]i," and the victim variously said, "Don't say hi to me," "Don't fucking talk to me," or was mumbling.¹ In the defendant's accounts, the victim then either hit or attempted to hit him; the defendant punched the victim in the face, and after the victim fell to the ground, the defendant and Silva both kicked the victim multiple times. At one point, the defendant and Silva were kicking the victim at the same time. The defendant told Johnson that he beat up the victim "pretty badly," and told Surdam that he and Silva had beaten the victim "worse than they meant to." According to the defendant, at some point he stopped kicking the victim and started to walk away, while Silva continued kicking, and then the defendant stopped Silva's attack as well. Silva removed a backpack, a wallet, and a lighter from the victim, elbowing the victim when he tried to get up during the search. The defendant told the police that he had said to Silva that Silva should not have taken money from the victim, and that the defendant did not accept any of the money. However, testimony from Ouellette indicated that the defendant accepted about seventy dollars and the lighter taken from the victim. The defendant also initially told police that he did not participate in the kicking, but admitted that he had kicked the victim when officers noticed blood on his sneakers. On the evening of the incident, Ouellette observed blood on the defendant's leg, on his stomach, and on his ear. Bloodstains on the defendant's sneakers and shirt, and on Silva's sneakers, matched the deoxyribonucleic acid profile of the victim.

After the attack, the defendant and Silva encountered Kathy Lewis Brown, who was walking in the area, and had a brief, innocuous conversation with her, asking whether she knew Silva's grandmother. Brown did not describe any animosity between the defendant and Silva, but did testify that the defendant seemed a little bit agitated and angry, while Silva seemed calm and relaxed.

Although a pool of blood was found on the path, the victim's body was found some thirty feet away and off the path. The position of the victim's body, the state of his clothing, and the leaves near his body were consistent with a finding that the body had been moved. An autopsy showed that the victim died of blunt trauma to the chest, which broke his sternum and lacerated his heart. The injury was caused by force greater than a punch, probably by stomping while the victim was lying on a flat surface. The victim also had abrasions on his chest, arms, legs, and head; a broken jaw, probably caused by a blow to the bottom of the chin; and a lacerated lung caused by broken ribs. His face appeared badly beaten. He likely lived for a few minutes after the fatal injury.

Discussion. 1. Evidence of prior conduct. At trial, the defendant's theory was that Silva, rather than he, inflicted the fatal injuries by stomping on the victim's chest, and that the defendant attempted to dissuade Silva from continuing the attack. To that end, the defendant sought to introduce testimony by Surdam that some months before this incident, Silva had attempted to attack someone with a knife, and the defendant had prevented the attack.² The judge granted the Commonwealth's motion in limine to exclude the evidence. The defendant argues that the prior incident was admissible as third-party culprit evidence.

In general, "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Mass. G. Evid. § 404(b) (2008-2009). It is true that "[a] defendant may introduce evidence that tends to show that another person committed the crime or had the motive, intent, and opportunity to commit it." Commonwealth v. Silva-Santiago, 453 Mass. 782, 800, 906 N.E.2d 299 (2009), quoting Commonwealth v. Lawrence, 404 Mass. 378, 387, 536 N.E.2d 571 (1989). However, if the defendant seeks to admit prior bad acts of the other person as part of that defense, "the defendant must show that `the acts of the other person are so closely connected in point of time and method of operation as to cast doubt upon the identification of [the] defendant as the person who committed the crime.'" Commonwealth v. Conkey, 443 Mass. 60, 66, 819 N.E.2d 176 (2004), quoting Commonwealth v. Hunter, 426 Mass. 715, 716-717, 690 N.E.2d 815 (1998). See Commonwealth v. Scott, 408 Mass. 811, 816, 564 N.E.2d 370 (1990), quoting Commonwealth v. Brown, 27 Mass.App.Ct. 72, 76, 534 N.E.2d 806 (1989) ("Apart from considerations of proximity in time and location, the instant and the similar crime must share singular features or present striking resemblances of method").

The evidence offered by the defendant was a prior act, offered to prove the respective characters of Silva and the defendant in order to show action in conformity therewith; it was therefore inadmissible. See Mass. G. Evid. § 404(b), supra. The rule admitting prior bad acts of third-party culprits does not have any application to this case. The Commonwealth did not claim that Silva, the alleged third-party culprit, was not a full participant in the crime; rather, it claimed that the defendant was also a participant. Even if the rule did apply to this case, the alleged prior crime would not meet the standard for prior bad acts of a third-party culprit. Silva's alleged prior and present assaults share no singular features or striking resemblance: the prior assault was committed with a knife, rather than a shod foot; it was committed in the defendant's house, rather than a path in the woods; and it was inferrably committed against an acquaintance of the defendant's, rather than a stranger.³

2. Unrecorded statements. The investigating officers did not record their interrogation of the defendant. The judge gave an appropriate instruction regarding unrecorded statements, as required by Commonwealth v. DiGiambattista, 442 Mass. 423, 447-448, 813 N.E.2d 516 (2004). The defendant requests that we now hold that unrecorded statements to police are per se inadmissible, a step we declined to take in Commonwealth v. DiGiambattista, supra at 449, 813 N.E.2d 516. We again decline to do so.

3. Sufficiency of the evidence. The defendant argues that the judge improperly denied his motion for a required finding of not guilty, because there was insufficient evidence that he had the requisite state of mind for murder in the first degree or armed robbery under either a principal or a joint venture theory of liability. The judge committed no error.

"[A] motion for a directed verdict should be denied `if all the circumstances including inferences [that are not too remote according to the usual course of events] are of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a...