Commonwealth v. Degro

• Decision Date: 05 May 2000
• Citation: 432 Mass. 319,733 NE 2d 1024
• Parties: COMMONWEALTH v. VICTOR DEGRO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

432 Mass. 319

733 NE 2d 1024

COMMONWEALTH v. VICTOR DEGRO.

Supreme Judicial Court of Massachusetts, Essex.

May 5, 2000.

August 17, 2000.

Present: MARSHALL, C.J., ABRAMS, GREANEY, SPINA, & COWIN, JJ.

Maxine Sushelsky for the defendant.

Deirdre L. Casey, Assistant District Attorney, for the Commonwealth.

COWIN, J.

A jury convicted the defendant of murder in the first degree on the theory of deliberate premeditation. We consolidate the appeal from his conviction with the appeal from the trial judge's denial of his motion for a new trial. The defendant claims numerous errors occurred during the trial and that the judge erred in the denial of his motion for a new trial. He also asks us to invoke our extraordinary power pursuant to G. L. c. 278, § 33E. After reviewing the entire record, we decline to exercise our power under G. L. c. 278, § 33E, to order a new trial, or to direct entry of a verdict of a lesser degree of guilt. We affirm both the conviction and the denial of the motion for a new trial.

Facts. The jury could have found the following facts. At approximately midnight on November 13, 1994, the defendant approached the victim, Daniel Santiago, outside the apartment building in which they both lived in Lawrence and stated, "I want to talk to you." Santiago indicated that he did not want to talk with the defendant, reached into his pocket, and took out a cigarette. The defendant ordered him to drop the cigarette. Santiago ignored him and turned toward the stairs of the apartment building. The defendant followed the victim and again ordered him to drop the cigarette. When the victim asked why, the defendant punched the victim in the mouth. Santiago fell against the balcony and hit his head. The victim told the defendant to "leave him alone," and began climbing the stairs to his apartment. The defendant continued to pursue Santiago, repeating that he wanted to "talk." When Santiago said he had been drinking and did not feel well and that they could talk the next day, the defendant punched him again, knocking him backwards onto the stairs. Santiago got up and started to climb the stairs again, but before he reached his apartment, the defendant drew a knife from his "back" and stabbed him three times, once in the back and twice in the leg.¹ One of the stab wounds in the leg was four inches deep. Each of the wounds could have been fatal.

Santiago's live-in girl friend, Miriam Melendez, and her son, David, awakened by a neighbor's telephone call, rushed to their apartment door.² David observed the defendant stab Santiago as he staggered into the apartment and fell into David's hands. David held the victim's head as he lay in the doorway, bleeding. David did not see the knife in the defendant's hand until after the victim fell. Melendez observed the defendant standing outside the apartment holding a knife. She asked him why he did it and he answered, "because [the victim] called my mother a bitch." The defendant ran to a parked car with three passengers inside and the motor running; he got into the driver's side and "took off." Santiago died at the scene shortly thereafter as a result of the stab wounds. The defendant was arrested in New Hampshire the day after the killing. After receiving his Miranda rights, when asked "where the knife was," the defendant responded, "I threw it in the Merrimack [River]." The defense sought to establish that the killing was not premeditated.

Pretrial. On January 6, 1997, when the Commonwealth moved for trial, defense counsel sought a short continuance because he needed to have his ill sister admitted to a hospital. A two-day continuance was granted and, on January 8, a jury were empanelled. On January 9, due to his sister's deteriorating medical condition, defense counsel sought a further continuance until January 13, 1997; he said that personal problems affected his ability to try the case immediately, and that he had advised the defendant of this fact. The judge told defense counsel to appear on January 13 and then, depending on his sister's condition, he could seek a further continuance, move for a mistrial, or proceed with the trial. The judge informed the jury in general terms that the reason for the delay was that defense counsel had a family emergency. Defense counsel never sought further relief and testimony began on January 13, 1997.³

1. Opening statement. An opening statement is "to outline in a general way the nature of the case which counsel expects to... prove." Commonwealth v. Hoilett, 430 Mass. 369, 372 (1999), quoting Commonwealth v. Fazio, 375 Mass. 451, 454 (1978). The defendant argues that two remarks in the opening statement by the prosecutor were improper attempts to obtain juror sympathy. He claims that the prosecutor mischaracterized the evidence by describing the knife the defendant used as one that looked "like the type you cut meat or vegetables with." There was no objection to this statement. There was no error. During trial, there was evidence that the knife was "a kitchen knife ... [a] long, big knife," a "big knife ... [a] cutting knife," and a "[k]itchen knife, big one." The prosecutor's words were a permissible description of the anticipated testimony. The prosecutor also stated: "And you can picture this scene as [the victim] falls and is laying there bleeding on that floor in front of you." There was no objection to this statement either. It was not improper.⁴

2. Sympathy testimony. The defendant claims that the Commonwealth was improperly permitted to elicit sympathy for Santiago's family through questions to Melendez about their home life and his work life and by introducing a photograph of the couple. The defendant did not object to the questions about the victim's home life nor to the admission of the photograph. He did object to the question, "Do they have some memory of him at [his place of employment]?" The objection was overruled; the prosecutor was told to "move on"; and there were no further inquiries about his work. The contested questions about his home life were limited in number and scope, and simply elicited family background information. The Commonwealth may "tell the jury something of the person whose life [has] been lost in order to humanize the proceedings." Commonwealth v. Santiago, 425 Mass. 491, 495 (1997),S.C., 427 Mass. 298, and 428 Mass. 39, cert. denied, 525 U.S. 1003 (1998); and a photograph may be admitted for this purpose. Commonwealth v. Andrews, 403 Mass. 441, 450-451 (1988). There was no error. The question concerning whether he was remembered at work was not proper, but it surely could not have made a difference to the verdict. Commonwealth v. Ruddock, 428 Mass. 288, 292 n.3 (1998).

The defendant also claims the prosecutor should not have been permitted to ask Melendez why she and her family were living in Georgia at the time of trial. Again, there was no objection. The witness responded, "The City of Lawrence." It is unclear what the witness meant by this response. Further, Melendez testified that she still worked for the same company, now at their factory in Georgia. Although such testimony was not relevant, the answer did not create a substantial likelihood of a miscarriage of justice. The question was an isolated one and the defendant's claim that the question suggests that the witness was in protective custody is specious.

Finally in this regard, the defendant alleges that the prosecutor improperly elicited "sympathy" testimony through questions on redirect examination of Melendez's son, David. Cross-examination of David attacked his memory of the details of the incident, eventually provoking the response: "I don't remember what happened, because it was two years ago and [my memory is] not that good...." On redirect examination, the prosecutor asked the following four questions: "Do you remember [the victim] falling into your arms that night?" "Do you remember [the defendant] lunging at [the victim] to stab him that night?" "Is that a clear memory in your mind?" "Will you ever forget that?" While the final inquiry should not have been made, there was no objection to any of these questions. A witness "may explain, modify, or correct damaging testimony that [has been] elicited on cross-examination." Commonwealth v. Olszewski, 416 Mass. 707, 718 (1993), cert. denied, 513 U.S. 835 (1994), quoting Commonwealth v. Mandeville, 386 Mass. 393, 400 (1982). The effective cross-examination warranted the first three questions, and the last question does not create a substantial likelihood of a miscarriage of justice.

3. The victim's prior bad acts and propensity for violence. The defendant next claims that the judge erred in preventing him from cross-examining witnesses about Santiago's propensity for violence and his prior convictions for assault and battery of a household member. The judge precluded such evidence, indicating that he would only allow evidence of Santiago's reputation for, or recent specific acts of, violence known to the defendant. There was no error. Evidence of a victim's propensity for being violent or of his specific prior bad acts is permitted only when the defendant asserts a claim of self-defense and makes a showing that he was aware of the violent character of the victim prior to the incident in question so that he reasonably believed he was in imminent danger. See Commonwealth v. Pidge, 400 Mass. 350, 352-353 (1987); Commonwealth v. Fontes, 396 Mass. 733, 735 (1986). There was no showing that the defendant was aware that Santiago had any propensity to be violent.

The defendant also attempted to introduce the prior bad acts as impeachment evidence. The victim's girl friend, Miriam Melendez, who was an important Commonwealth witness, testified that she and the defendant had a good relationship. Defense counsel's plan was to impeach Melendez's credibility and the credibility of her daughter by establishing that she and Santiago did not have as good a relationship as the...