Com. v. Vazquez

• Decision Date: 20 January 1995
• Citation: 644 N.E.2d 978,419 Mass. 350
• Parties: COMMONWEALTH v. Miguel A. VAZQUEZ. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 978

644 N.E.2d 978

419 Mass. 350

COMMONWEALTH v. Miguel A. VAZQUEZ. ¹

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Oct. 5, 1994.

Decided Jan. 20, 1995.

Stanley W. Norkunas, Lowell, for defendant.

Michael Adam Chinman, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, LYNCH, O'CONNOR and GREANEY, JJ.

LYNCH, Justice.

The defendant was found guilty by a Superior Court jury of murder in the first degree by reason of extreme atrocity or cruelty. In this appeal, the defendant contends that: (1) his excessive consumption of alcohol debilitated his mental condition, such that, as a matter of law, he was incapable of forming the specific intent required for a murder conviction; (2) the prosecutor's closing argument was prejudicial; (3) it was an abuse of discretion for the judge to allow in evidence a photograph of an extracted part of the victim's body; (4) the judge's instructions contained several errors; and (5) pursuant to G.L. c. 278, § 33E (1992 ed.), this court should reduce the verdict to murder in the second degree. We affirm and decline to exercise our power under G.L. c. 278, § 33E.

There was evidence from which the jury could have found that, on September 20, 1988, around 9 P.M., the police discovered the victim's body covered with silver paint in a grassy, wooded area near Gallagher Square in Lowell. The defendant had purchased a quart of beer from a local liquor store in Lowell at about 9:30 A.M., and returned to this liquor store two or three times over the next four to six hours, purchasing another quart of beer each time. That same morning, the victim and one of his friends went to the Sportsman's Club in Lowell where they each consumed several beers. Before leaving the club, the victim's friend gave the victim ten dollars to purchase a partially used five-gallon can of silver paint from another patron in the bar. When the victim's friend left around 1:30 P.M., the victim remained at the club.

Between 2:30 and 3 P.M., the defendant entered the Sportsman's Club, sat with the victim, and they each consumed one or two more beers before leaving. Later that afternoon, around 4:40 P.M., the defendant and the victim were seen on a street corner near Gallagher Square consuming a can of beer. At that time, the victim was still carrying the five-gallon can of paint. At approximately 5:30 P.M., witnesses saw the defendant and the victim near the grassy, wooded area close to Gallagher Square.

Shortly after 6:30 P.M., a woman saw the defendant, covered with silver paint, walking toward her and away from Gallagher Square. Based on her brief conversation with the defendant, she did not believe him to be intoxicated. At approximately 7 P.M., the defendant, still covered with paint, went to his then current residence, the Middlesex Shelter which is located near the Sportsman's Club. After talking with other shelter residents, the defendant pleaded with the front desk supervisor to release him even though the defendant knew the shelter's policy prohibited leaving the shelter once a resident had come in during the evening. After the defendant had been "put out for the night," one of the shelter residents who had spoken with the defendant went to the front desk. Based on this conversation, the supervisor contacted the Lowell police who eventually located the defendant and asked him whether he had found a body. The defendant stated that he had been urinating in the bushes in Gallagher Square and that when he looked down, he saw a body. After leading the police to the body, the defendant went to the Lowell police station for questioning. He denied that he had been involved in a fight with the victim and stated that he had been urinating and had merely found the victim. The officers that questioned the defendant stated that the defendant's speech was clear, calm, easy to understand, and not slurred.

The next morning, the defendant admitted to being involved in a violent fight with the victim. He stated that he had hit the victim over the head with the five-gallon paint can and had punched the victim in the face at least twice.

1. Voluntary intoxication. The defendant's argument that his excessive consumption of alcohol debilitated his mental condition, such that, as a matter of law, he was incapable of forming the specific intent required for a murder conviction is legally flawed. This court has held that, when proof of the defendant's specific intent is required "the judge should instruct the jury, if requested, that they may consider evidence of the defendant's intoxication at the time of the crime in deciding whether the Commonwealth has proved that specific intent beyond a reasonable doubt." Commonwealth v. Henson, 394 Mass. 584, 593, 476 N.E.2d 947 (1985). If, however, the jury find that the defendant's specific intent has been established beyond a reasonable doubt, the defendant's voluntary intoxication cannot be used to excuse or to justify the defendant's actions. Id. at 593-594, 476 N.E.2d 947. Moreover, the Commonwealth does not have to prove that the defendant was not intoxicated. Commonwealth v. Costello, 392 Mass. 393, 404-405, 467 N.E.2d 811 (1984). Nevertheless witnesses who observed the defendant both before and after the incident described his conduct in such a way as to warrant the conclusion that he was not impaired or debilitated by alcohol. Furthermore, the jury could have reasonably concluded that the Commonwealth established the defendant's specific intent beyond a reasonable doubt. There was evidence that the defendant smashed a heavy paint can into the middle of the victim's face, fracturing his facial bones, kicked the victim on both his right and left sides, rupturing his internal organs, and manually strangled the victim for a minimum of thirty seconds, fracturing his hyoid bone. Specific intent, therefore, could have been established by the defendant's repeated infliction of serious physical injuries. The evidence of the defendant's voluntary intoxication did not require, as a matter of law, the finding that the defendant lacked that intent.

2. The prosecutor's closing argument. The prosecutor's closing argument did not misstate evidence nor argue matters not in evidence. At the beginning of his closing the prosecutor stated that the best evidence concerning what happened and the defendant's intent was the body of the victim. At the end of his argument his statement that the jury "take with [them] the body of [the victim] ... and go into [the] jury room and deliberate," when taken in context, was not improper. A prosecutor may refer to the condition of the victim's body in the context of...