Commonwealth v. Gonzalez

• Decision Date: 19 August 2014
• Docket Number: SJC–11428.
• Parties: COMMONWEALTH v. Mario GONZALEZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

469 Mass. 410

14 N.E.3d 282

COMMONWEALTH

v.Mario GONZALEZ.

SJC–11428.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 11, 2014.

Decided Aug. 19, 2014.

David Keighley, Fairhaven, for the defendant.

Helle Sachse, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, GANTS, DUFFLY, & LENK, JJ.¹

Opinion

GANTS

, J.

In the early morning hours of February 15, 2009, the defendant stabbed his girl friend multiple times shortly after they returned to his apartment from a local bar. The victim died of her wounds

later that morning. A Superior Court jury convicted the defendant of murder in the first degree on a theory of extreme atrocity or cruelty, in violation of G.L. c. 265, § 1.² On appeal, the defendant claims that (1) the statements the defendant made from his holding cell in response to police questioning should have been suppressed because he had earlier invoked his right to silence; (2) the admission in evidence of the defendant's invocation of his right to silence created a substantial likelihood of a miscarriage of justice; (3) the trial judge erred in admitting statements made by the victim as dying declarations; (4) the judge erred in admitting certain testimony regarding the defendant's prior bad acts; and (5) the absence of an instruction to the jury that they may consider the defendant's consumption of alcohol in determining whether the defendant acted in a cruel or atrocious manner in causing the victim's death created a substantial likelihood of a miscarriage of justice. The defendant also requests that we exercise our authority under G.L. c. 278, § 33E, to reduce the conviction to a lesser included offense. We reject the defendant's first four claims, but agree with the fifth. We therefore reverse the defendant's conviction of murder in the first degree and remand the case to the Superior Court to allow the Commonwealth to choose between entry of a verdict of murder in the second degree or retrial of the defendant on the charge of murder in the first degree.

Background. We summarize the evidence at trial, but reserve certain details for our discussion of the defendant's claims of error.

The defendant and the victim had been dating for approximately six months before the killing. The victim had asked the

defendant to stop drinking, and on one occasion, the victim refused to go home with the defendant because he was intoxicated. The couple spent the evening of February 14, 2009, at a local bar, celebrating Valentine's Day in the company of the victim's mother. During the course of the evening, the victim had a few drinks and the defendant drank steadily. When they left the bar and entered a taxicab at approximately 1 A.M., both the defendant and the victim were intoxicated. The victim's mother was dropped off at her son's house, and the taxicab then drove the defendant and the victim to the defendant's apartment in the Dorchester section of Boston. At approximately 2:30 A.M., the victim telephoned her mother to make sure she arrived home safely.

At 3:15 A.M., the defendant telephoned 911, and reported, in Spanish, that someone had entered his apartment and stabbed his wife.³ The defendant told the 911 operator that he did not know who had entered his home, and explained, “I came a while ago, and my wife left the door open for him and someone entered and I don't know what happened, but ... she's letting out a lot of blood.”

Police and emergency medical technicians arrived at the apartment house within a few minutes, and the defendant brought them to a bedroom in the third-floor apartment. The victim was lying on a bed, bleeding heavily from stab wounds

. There was blood on the pillows and the doorknob, and blood spatter stains on the walls, but no blood on the floor; a wet mop was discovered behind the door of the defendant's bedroom, and the floor was wet underneath the bed where the victim lay bleeding. Boston police Officer James O'Brien several times asked the victim who had stabbed her, and each time she replied, “I don't want to die.” Upon removing the victim's clothing, emergency medical technician Emilie Howard discovered that she had suffered six stab wounds

to her left shoulder, one to her right shoulder, and one to her left chest just below the breast. The victim had no palpable blood pressure and was “close to dying.” In response to Howard's question about the length of the knife used in the attack, the victim implored, “Please don't let me die,” four times.

Because he spoke only Spanish and the responding officers spoke only English, the defendant was unable to communicate

with the officers who first arrived at the scene. While the emergency medical technicians prepared to transport the victim to the hospital, the defendant was pat frisked; no weapons were found on his person. Shortly thereafter, Officer Omar Cepeda, a fluent Spanish speaker, arrived and spoke with the defendant in Spanish. Officer Cepeda noted that the defendant had “red, glassy eyes” and smelled of alcohol, and that the defendant had fresh wounds

to his nose and lip. In response to Officer Cepeda's inquiry, the defendant stated that he had arrived home from drinking at a local bar to find the front door of the apartment open and the victim lying on the bed in a pool of blood. According to the defendant, the victim told him that an unknown person had entered the apartment, demanded money, stabbed her, and fled. In response to Officer Cepeda's question about the cut on his nose, the defendant stated that he had received it about three days ago in a fight. Officer Cepeda told Sergeant Daniel Tracey about the defendant's statements, and Tracey told Cepeda to give the defendant the Miranda warnings. Cepeda recited the warnings to the defendant in Spanish; the defendant said that he understood and had “nothing to hide.” Thereafter, in response to Cepeda's renewed inquiry about the injury on his nose, the defendant repeated it was from a fight two to three days previously. The defendant, when asked whether the victim had described her assailant, said that he could not get a description from her. Cepeda informed the defendant that the victim was still alive, and asked, “Do you want to tell me what happened here?” The defendant replied, “No.”

Meanwhile, paramedics Sean Murphy and Michael Sullivan accompanied the victim in the ambulance to the hospital. They noted that the victim was pale, had no blood pressure, and had a life-threatening wound

. As Murphy prepared to insert an intravenous (IV) tube, the victim pulled away and looked scared. Murphy explained to the victim that she was very sick, whereupon the victim allowed him to start the IV. Following instructions, the victim squeezed Murphy's hand to indicate that she understood what he was saying. Thereafter, Murphy asked the victim if her husband did this to her. The victim answered, “Yes.” Sullivan also asked the victim, “Your husband did this?” and the victim answered, “Yes, my husband.” The victim arrived at the hospital at approximately 3:30 A.M.⁴

On arrival at the hospital, the paramedics told police what they had learned in the ambulance. This information was communicated to Sergeant Tracey, who, while the defendant was speaking with Officer Cepeda, ordered the defendant's arrest.

When the defendant arrived at the police station, Cepeda brought the defendant to a holding cell and told him that he (Cepeda) would be across the hall if the defendant needed anything. As Cepeda started to walk away, the defendant said, “I was the one that got hit with a beer bottle in the face.” Cepeda turned around and asked him what really happened. The defendant then stated that he had come home from the bar and gotten into an argument with the victim about his drinking. The defendant said that the argument escalated, and that she hit him with a beer bottle in the face, pulled out a black, folding knife, and charged at him. The defendant stated that he was able to twist the knife away from the victim, and then stabbed her in the back several times. As the victim ran towards the front door, the defendant followed and said, “I'm sorry, I don't know what happened. I don't know why I did this.” The defendant then helped the victim into bed and telephoned 911. Officer Cepeda asked the defendant about the location of the knife. The defendant first responded that it might be in the hallway, then said that it might have been thrown out the bedroom window, and later said that it might be in another room in the apartment.⁵ At approximately 9 A.M., the defendant called his roommate from the telephone by the booking desk of the station. The defendant left a message on his roommate's voicemail, in which he said he had been drinking and “had problems with the Puerto Rican woman” and stabbed her.

Discussion. 1. Suppression of defendant's statements made from the holding cell. Before trial, the defendant moved to suppress all statements he made to the police. In the affidavit accompanying the motion, the defendant stated that Cepeda “did not speak Spanish, as I know it, very well,” and that, as a result, the defendant did not understand what Cepeda said, and vice-versa. He claimed, “Because of my inability to understand, no statement made by me at the police station was voluntary.” He did not assert that he ever invoked his right to silence.

After an evidentiary hearing, the motion judge, who was not the trial judge, found that “[t]he defendant spoke freely and coherently

with Officer Cepeda in Spanish” and that “[t]he defendant had no trouble in understanding Officer Cepeda or in expressing himself to the officer in Spanish.” The judge denied the motion to suppress, finding beyond a reasonable doubt that all of the defendant's statements were voluntary and that the defendant made a knowing, intelligent, and voluntary waiver of his Miranda rights. The motion judge did not address the claim that the defendant makes on appeal—that the defendant invoked his right to silence...