Commonwealth v. Garcia

• Decision Date: 29 October 2014
• Docket Number: SJC–11127.
• Citation: 18 N.E.3d 654,470 Mass. 24
• Parties: COMMONWEALTH v. Joonel GARCIA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

470 Mass. 24

18 N.E.3d 654

COMMONWEALTH

v.Joonel GARCIA.

SJC–11127.

Supreme Judicial Court of Massachusetts, Essex.

Argued Dec. 6, 2013.

Decided Oct. 29, 2014.

Jeffrey L. Baler for the defendant.

Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

Present: SPINA, CORDY, BOTSFORD, DUFFLY, & LENK, JJ.

DUFFLY, J.

The defendant was indicted on charges of murder in the first degree and five related offenses in connection with the death of Rafael Castro on August 26, 2004.¹ A Superior Court jury found the defendant guilty of murder in the first degree on theories of extreme atrocity or cruelty and felony-murder, based on the underlying felonies of both home invasion and armed or assaultive burglary. The jury also found the defendant guilty of the other charges. The jury did not specify whether they found the defendant guilty of any of the offenses as a principal or as a joint venturer.

On appeal, the defendant maintains that the evidence was insufficient to show that he shared the requisite intent to commit the crimes charged. The defendant contends also that his right to a fair trial was denied when he was not permitted to impeach a Commonwealth witness by confronting her with a child she observed outside the court room, whom she testified she believed to be her deceased child, although the witness was permitted on redirect examination to testify to the reasons she had formed that belief. In addition, the defendant asserts that a new trial is required because the judge erroneously declined to give two requested jury instructions, and because his counsel was ineffective for failing to object when the judge instructed that accident was not a defense to the killing. The defendant also requests that we exercise our authority to provide relief pursuant to G.L. c. 278, § 33E. We affirm the convictions, and discern no reason to grant a new trial or to reduce the verdict of murder in the first degree to a lesser degree of guilt.

Background. We summarize the facts the jury could have found, reserving certain facts for later discussion.

1. The shooting on August 26, 2004. Castro, whose street name was "Calvo," was a drug dealer. In August, 2004, Castro lived with Ramona Gonzalez in a sixth-floor apartment in an apartment building in Lawrence. At times, Gonzalez also was involved in drug dealing, as was her daughter, Norma Cedeno, who lived primarily in the Dominican Republic. On August 26, 2004, Gonzalez was in New York. Castro drove to Logan airport in Boston to pick up Cedeno, who was to arrive that evening from the Dominican Republic. After picking up Cedeno, Castro drove her back to the apartment building, where they arrived at approximately 11:15 P.M. Castro used his key to unlock the front door to the apartment. Cedeno entered the darkened apartment first, putting down some takeout food they had purchased en route, and heading directly to the bathroom. Although the apartment lights were off, there was some illumination from exterior street lighting. As Cedeno took a step into the bathroom, a man grabbed her and threw her to the floor, holding her down while putting a gun to the back of her neck and ordering her to look down. Cedeno cried out, "Oh my God."

Earlier that day, the defendant and his girl friend, Jessica Encarnacion, had been in their apartment when a man known as "Gringo"² arrived with two other men, Cesar Santana and Alfredo Catalino. Another man, "Propeto," had arrived at the defendant's apartment separately several hours earlier in the day, and was there when Gringo and the other two men arrived.³ The four men often socialized together. Gringo, who was acquainted with Castro, told the defendant that there was "a job to do," and that they were going to "take something from Calvo ... some drugs that he had" that had been brought from Texas. If the defendant agreed to help, they would be able to live as "retirees." Around 2 P.M. , Gringo drove the defendant to Castro's apartment building and pointed it out to him. Later that night, Gringo drove the defendant, Santana, and Catalino to the apartment building.⁴ Gringo said that he had learned that Castro was not there, and they would wait for Castro to return.

The four men, two of whom had guns, entered the building using a pass card Gringo had and then entered Castro's apartment using a key that Gringo produced. They waited in the apartment for approximately thirty minutes before they heard a door opening. At that point, Gringo told the defendant, Santana, and Catalino to go into the bathroom and that he, Gringo, would remain in the living room. Castro entered the apartment after Cedeno, and started to run toward the living room when another man "jumped" out to meet him. Castro lunged at the man, and the man shot Castro in the forehead, seriously injuring him. The bullet, which did not penetrate Castro's face, traveled diagonally downward from the top of his forehead, where the wound

was deepest, over his right eye and cheek, lacerating the skin. He was alive, but bleeding profusely. Some of the men, including the defendant, took Castro into the smaller of the apartment's two bedrooms. The men, whose voices she did not recognize, told Cedeno that they would kill her if she looked up because she "was going to know who they were," and put a pillow case over her head, which remained covered until the men left the apartment. Cedeno was taken to the larger bedroom where one of the men remained with her.

Some of the men wrapped duct tape around Castro's ankles and wrists,⁵ and one or more yelled at Castro, demanding drugs and money. When Castro denied that he had any drugs, the men demanded that he make a telephone call. Castro offered to get them $20,000 if they cut him loose, but the men laughed at this offer and refused. They continued to yell at Castro, and to hit him. Cedeno could hear Castro whimpering and groaning in pain, asking them to remove the tape, and repeatedly asking for water. At one point, Cedeno was brought into the room with Castro; the men took off her shirt and threatened to burn her with a hot iron. Cedeno "could smell the burn of the iron," and she implored Castro to tell the men what they wanted to know. In a weak voice, Castro said, "Don't do it." One of the men put Cedeno's shirt back on and took her back to the other bedroom. Cedeno could hear the men walking around the apartment making calls on their cellular telephones, becoming angrier, and saying things like, "He doesn't want to talk," and, "He doesn't want to make the phone call. What are we going to do next?" One of the men said they should "[j]ust kill him."

A man tied Cedeno's ankles with duct tape, but she persuaded him not to tie her hands. The man told Cedeno that three of them were leaving, but that one was going to stay behind in case she tried to call the police. In an angry voice, he told her, "We already know who you are, so if you call the police, or ... one of us get[s] caught, we [are] just going to come back and get you." He said that he had a blade in his hand and would cut her face, and that they "all [had] guns." Approximately ninety minutes had passed since the incident began. When the man left, Cedeno heard the door shut, but was not sure whether any of the other men remained in the apartment. She waited before calling out to Castro and asking if he was there alone; in a faint voice, he asked her to open the door and help him. Cedeno pulled herself into the kitchen and cut the duct tape from her ankles with a knife.

The door to the bedroom in which Castro had been placed was locked, and Cedeno used part of a bracelet to pick the lock. Castro was lying on the floor and there was a lot of blood, particularly on his face. She removed the duct tape binding him, and held his hand for a short time to comfort him. She tried calling for help on the apartment's telephone, but it had been pulled from the wall, and the intruders had taken Castro's cellular telephone. Cedeno found another telephone and telephone cord in a drawer, and used it first to call her mother and Ricardo Rosa, a former boy friend who lived in the same building and was a friend of Castro's. She was afraid to contact police at that point because she did not know if the men were waiting to see if she would do so. After speaking with her mother and Rosa, Cedeno telephoned 911; an ambulance, dispatched at 12:53 A.M. , arrived three to four minutes later. Upon arriving, paramedics saw an "extremely large pool of blood" and found Castro lying on the bedroom floor. They determined that Castro was dead and notified Lawrence police at 1:03 A.M. The cause of death was cardiac arrest

resulting from loss of blood from the gunshot wound to the forehead.

2. Flight from Massachusetts. Encarnacion and Propeto were watching television when the defendant returned to his apartment at approximately 1 A.M. , accompanied by Gringo, Santana, and Catalino.

The defendant was not wearing the clothes he had been wearing when he left, but, rather, was wearing "girl's pants" and a different shirt. When he took off that shirt, Encarnacion could see the front of the shirt that the defendant had been wearing earlier, covered with blood spatter. Encarnacion also observed blood spatter on the defendant's shoes. When she asked about the blood and the pants, the defendant said that nothing had happened and not to worry about it. He told her: "Just, [s]hut up. Get me a bag. I need to take these clothes off and put them in a bag. And just keep packing. We have to leave here to [go] out of state."

Encarnacion gave the defendant a trash bag; he put the clothes he had been wearing into the bag, and left the apartment with it. Gringo, Santana, and Catalino went with him. They returned five minutes later, without the bag.⁶ The defendant was acting nervous. In response to Encarnacion's questions, he told her that he had discarded the bag; when she asked why, he said, "I'll talk to you when we get out of here." He then said...