Com. v. Santiago

Decision Date21 July 1997
Citation425 Mass. 491,681 N.E.2d 1205
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Willie J. Davis, Boston, for defendant.

Katherine E. McMahon, Assistant District Attorney (James W. Coffey, Assistant District Attorney, with her), for the Commonwealth.


FRIED, Justice.

The defendant Felix Santiago, a juvenile, was indicted for the murder of Vilma Flores; armed assault with the intent to murder, and assault by means of a dangerous weapon on Ludwin Midence; unlawful possession of a firearm; and unlawful possession of ammunition. 1 The defendant waived his right to a jury trial in the first instance, and was adjudicated delinquent on all counts after a bench trial. He then claimed a jury trial and moved to dismiss the murder indictment. That motion was denied and the defendant sought relief from this court. See Santiago v. Commonwealth, 422 Mass. 1012, 664 N.E.2d 1194 (1996). He was unsuccessful. A jury in Boston Juvenile Court then found the defendant guilty of all five counts. The defendant was sentenced to a twenty-year term of commitment on the murder conviction, and was committed to the Department of Youth Services on the remaining convictions. The defendant appealed from only the conviction of murder in the first degree. 2 We reverse the conviction.


On June 5, 1994, the victim, four months pregnant, accompanied her fiance to Carter Playground in Boston to watch him play softball. The event took place one day before the victim's eighteenth birthday. Four teams were playing that day, and a crowd of approximately five hundred to one thousand people gathered to watch the games. Shortly after 5 P.M., the victim walked to the concession stand to buy food. On her way back, she passed two groups of men exchanging angry words on and near the sidewalk adjacent to Columbus Avenue. A witness identified the defendant, who was known to him, as a young Hispanic man straddling a bicycle between parked cars on Columbus Avenue near where the men were arguing.

According to a statement the defendant made to police, the defendant had seen a rival group of men at the park, and he had informed his friends of their presence. He was asked by his friend, one of the men who was later involved in the argument, to "go get something." At this direction, the defendant left to borrow a gun from a nearby video store and returned to the scene. What happened next is in dispute. An argument broke out between the defendant's friends and the other group. Apparently one of the men in the other group said, "take him out," referring to the defendant's friend. The defendant told the police that the men on the sidewalk fired first, but none of the witnesses to the shooting was able to determine which side fired first. It appeared that four shots were fired from the area where the defendant was straddling his bicycle before his gun jammed, and several more shots were fired from the area where the other group was standing. As the victim walked past the two groups, she was struck by a bullet and killed. An eight year old boy playing within a few feet of the defendant was shot in the leg. The bullet which killed the victim was never recovered, and therefore there was no conclusive forensic evidence as to whether the bullet which killed the victim was fired by the defendant or by one of the men in the other group. The Commonwealth sought to demonstrate at trial that the position of the victim when she was shot proved that the bullet came from the defendant's gun.

Defense counsel argued that the Commonwealth could not prove who fired the fatal shot, and that the defendant engaged in the shooting as an act of self-defense. He pointed to the fact that the defendant retrieved the gun only at the behest of an older friend, and argued that the defendant did not start firing until the other group threatened his friend and had fired the first shot.


The defendant's first argument is that the prosecutor, in his opening and closing statements as well as in calling the victim's sister as a witness, improperly appealed to the jury's sympathy for the victim in a way that may have "swe[pt] the jurors beyond a fair and calm consideration of the evidence." Commonwealth v. Perry, 254 Mass. 520, 531, 150 N.E. 854 (1926). The defendant points to five instances in which he claims the prosecutor improperly appealed to the sympathy of the jury.

1. Repeated references to the age, birthday, and pregnancy of the victim. The defendant claims that the prosecutor's repeated references to the victim's age, pregnancy, and birthday were improper and calculated to influence the jury to render a verdict based on emotion and sympathy for the victim rather than on a reasoned judgment based on the evidence at trial. In his opening statement, the prosecutor referred five times to the fact that the victim was seventeen years old and pregnant. In his closing, he referred to those same facts seven more times, and noted four times that the victim was to have a birthday one day after the shooting and that, coincidentally, her twentieth birthday corresponded with the day of the closing arguments in the trial. The defendant objected at the end of both the prosecutor's opening and closing statements. The following portion of the prosecutor's closing argument is illustrative:

"Because of [the defendant's] actions, [the victim] is dead. She no longer exists. She is not going to walk through that door today.... She is dead and buried. Murder is violent and it is final. And a [seventeen] year old girl, four months pregnant, is dead because of him and no one else. I want you to think about that. Seventeen years old, four months pregnant. It is unconscionable what he did that day. It is mind boggling....

"Today she would have been twenty years old.... Twenty years old today. I want you to think about that. She couldn't reach her [twentieth] birthday because of this guy right here who is wearing a shirt and tie. She would still be a kid, [twenty] years old.... It is mind boggling what he did that day and a pregnant girl is dead."

The prosecutor has a particular obligation not only to argue the Commonwealth's case forcefully and aggressively, but also to do so in a way that states the evidence clearly and fairly and inspires confidence that the verdict was reached based on the evidence rather than sympathy for the victim and her family. See Commonwealth v. Shelley, 374 Mass. 466, 472, 373 N.E.2d 951 (1978), citing Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935), overruled on other grounds, Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). The prosecutor failed in that latter obligation by his repeated references to the victim's personal characteristics. Certainly the prosecutor is entitled to tell the jury something of the person whose life had been lost in order to humanize the proceedings. 3 In a case such as this where the victim's character and personal characteristics are not relevant to any material issue, however, the prosecutor is under an obligation to refrain from so emphasizing those characteristics that it risks undermining the rationality and thus the integrity of the jury's verdict. The prosecutor not only unnecessarily repeated the victim's age and the fact of her pregnancy throughout his arguments, he suggested that these facts were issues the jury should consider in their deliberations when he repeatedly stated to the jury in reference to these facts, "I want you to think about that."

The jury have the ability to discount hyperbole and other improper statements, see Commonwealth v. Anderson, 411 Mass. 279, 287, 581 N.E.2d 1296 (1991), and the trial judge's instructions are generally adequate cure errors in the arguments, see Commonwealth v. Francis, 391 Mass. 369, 373-374, 461 N.E.2d 811 (1984). Thus, in many cases, arguments by the prosecutor, while in error, are not unduly prejudicial. See, e.g., Commonwealth v. Pontes, 402 Mass. 311, 522 N.E.2d 931 (1988); Commonwealth v. Depradine, 42 Mass.App.Ct. 401, 409, 677 N.E.2d 262 (1997). Contrast Commonwealth v. Graziano, 368 Mass. 325, 332, 331 N.E.2d 808 (1975) (use of ethnic stereotypes in closing required reversal). In this case, however, the prosecutor repeatedly appealed to the jury's sympathy, and the cumulative effect of such appeals must be considered.

2. Testimony of the victim's sister. The judge denied a motion in limine to exclude the victim's family members from testifying on the grounds that none of them witnessed the events in question, and there was no issue as to identification of the victim. The victim's sister was the first witness called by the prosecution. She testified as to the victim's age, her relationship with her fiance, her pregnancy, and related that the victim was in school and working, and that the family had just celebrated the victim's birthday. The victim's sister also testified that on the day her sister had been shot, she had gone to the hospital where she waited until she was told her sister died. After the witness testified, defense counsel moved for a mistrial on the ground that the testimony offered no relevant facts and was designed solely to elicit the jury's sympathy. The motion was denied. As the victim's sister left the witness stand, she walked to the front of the defense table and yelled at the defendant, "Murderer. You killed my sister." Defense counsel again moved for a mistrial which the judge denied. The judge explained to the jury that emotions are strong in a case such as this and he said, "I ask you to disregard that particular outburst.... Don't consider it in any way and don't even discuss it in your deliberations."

Both sides in a criminal trial have substantial latitude to try the case in their own way without significant interference so long as they...

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