Commonwealth v. Lao

• Decision Date: 11 February 2005
• Citation: 824 NE 2d 821,443 Mass. 770
• Parties: COMMONWEALTH v. AGAPITO LAO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

443 Mass. 770

824 NE 2d 821

COMMONWEALTH v. AGAPITO LAO.

Supreme Judicial Court of Massachusetts, Suffolk.

February 11, 2005.

March 31, 2005.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, & CORDY, JJ.

Roger A. Cox for the defendant.

John P. Zanini, Assistant District Attorney, for the Commonwealth.

SPINA, J.

A jury in the Superior Court convicted the defendant of murder in the first degree on a theory of deliberate premeditation for the strangulation death of his estranged wife. Represented by new counsel, he now contends that the judge erred in (1) failing to conduct an individual voir dire of potential jurors as to the issue of domestic violence; and (2) denying his motions for a required finding of not guilty. We affirm the defendant's conviction and conclude that there is no basis to exercise our power under G. L. c. 278, § 33E, to reduce his conviction to a lesser degree of guilt or order a new trial.

1. Background. The defendant and his wife, Alicia, were separated and had been living apart for approximately one and one-half years before her murder. During their marriage, the defendant had not allowed Alicia to invite friends to their house, had eavesdropped on her telephone conversations, had wanted to be paged when she left the house and again when she arrived at her destination, had argued with her about visits from her relatives, and had not wanted her to obtain a driver's license. After the defendant moved out of the marital home on the third floor of 122 Bellingham Street in Chelsea, he still visited every other day, even though the locks had been changed, and drove Alicia from place to place. The defendant and Alicia continued to argue, often about her telephone calls, and then went about their business as if nothing had happened.

On the evening of April 30, 2000, the defendant and Alicia went out to dinner, purportedly to discuss their divorce and the fact that Alicia's boy friend would be moving in with her the next day. When she returned home, Alicia was crying, scared, and upset, telling her teenage daughter, Yessenia, that when the defendant dropped her off, he had tried to run her over with his car. Still crying, Alicia paged the defendant several times. When he answered her page, Alicia asked the defendant why he had tried to run her over, and she threatened to kill him.¹ After the defendant hung up on her, Alicia paged him several more times, but he did not respond. Still upset, Alicia telephoned her mother and recounted what just had happened with the defendant. Alicia then telephoned the police. When the police responded, she still was crying, nervous, and upset. Alicia explained to Officer Eugene Bonita the events that had transpired that evening. Officer Bonita advised Alicia of the process for obtaining a protective order, but she declined to pursue that avenue and said that she would telephone if she needed further police assistance. The defendant later denied to the police that he had argued with Alicia about their divorce, or that he had attempted to run over Alicia with his car.

During the evening of May 1, 2000, Alicia's boy friend, Ramon Rodriguez, arrived at her home from New York City. At approximately 8 A.M. the next morning, he left the apartment to apply for a job at Massachusetts General Hospital (MGH), where he once had been employed. Yessenia had given Rodriguez her keys so that he could get back into the apartment. Roberta Keogh, an MGH employee, remembered seeing Rodriguez at approximately 9 A.M. and observed him filling out an application for a janitorial position. Rodriguez spent twenty to twenty-five minutes completing the application. Then, he spoke with a few old friends on his way out of MGH and took a bus back to Alicia's apartment.

Meanwhile, back in Chelsea, Millie Guzman, who lived in the apartment below Alicia's, was awakened by the sounds of Alicia screaming and of a struggle coming from that apartment, including pounding noises.² At about the same time, she heard her father, Francisco Guzman, unlock the front door and go outside to start his tow truck. According to Guzman, he left the apartment about 9 or 9:15 A.M. and locked the back door of the apartment building behind him. When Guzman returned to the apartment approximately ten minutes later, the screaming had stopped.³

When Rodriguez arrived back at Alicia's apartment from MGH, he entered and found Alicia lying unconscious across the bed surrounded by blood. He immediately telephoned 911 (at approximately 10:13 A.M.), tried to administer cardiopulmonary resuscitation (CPR), and waited for the police. Within minutes, emergency personnel arrived at the scene. When Rodriguez met them on the landing of the third-floor apartment, he was holding a baseball bat that he had grabbed in case Alicia's attacker was still inside the apartment. Police witnesses testified that Rodriguez was shaking and looked "scared and afraid and excited" when they first saw him. Rodriguez directed the police to Alicia's bedroom, where she was lying unconscious, face up, with her feet on the floor. She was holding a telephone in her left hand, her left arm had been lacerated, blood was on the pillow underneath her arm, and she had visible bruises on her neck. Emergency personnel performed CPR, and Alicia was taken to a hospital where she survived in the intensive care unit for nearly two weeks with no brain activity. She was pronounced dead on May 17, 2000.

Between 9 and 9:30 A.M. on May 2, 2000, Jose Santiago and his brother, Carlos Merced, were examining and repairing a tire on a car parked near Alicia's home at 122 Bellingham Street. Santiago's former wife and children lived in an apartment at that address, and he had driven over to pay the rent to his wife's landlord, Francisco Guzman. As Santiago walked to the back of the house, he passed the defendant, whom he had known for several years, and who was walking down the driveway away from the house in the direction of the street. The two men greeted each other, and Santiago stated that the defendant looked a little nervous. The defendant was wearing a sweater with a hood covering his head; he was also wearing gloves. When Santiago reached the rear of the house, he noticed that the back door was open. Concerned for his daughters, Santiago asked Guzman why he had left the door open, to which Guzman replied that he had just locked the door. Santiago then told Guzman, "Well, it must be [the defendant] because I saw him go by the driveway. I bumped into him." Not sure of the exact time of this encounter, Santiago estimated that he saw the defendant approximately thirty minutes before the police arrived. A neighbor, Natalie Ramos, observed Santiago speaking with Guzman around 9:20 A.M. Later that day, Santiago identified the defendant from a photographic array as the man that he had greeted that morning as the man walked down the driveway.

Later that same day, at approximately 2:30 P.M., the police stopped the defendant on Northampton Street in Boston, which was near his home. He was driving a white van. The defendant voluntarily went to the police station where, after receiving the Miranda warnings, he answered all questions posed by the police, and he denied being anywhere in the vicinity of Alicia's apartment that morning. Instead, he claimed that he left his home around 8 A.M. and went to the South Bay Home Depot store to purchase a door for a job that he had in Waltham, at the home of Yolanda Louis. A store videotape showed that, at approximately 8:50 A.M. on May 2, an individual purchased the specific type of door that was installed at Louis's home and wheeled it out of the store.⁴ A receipt for this purchase, also indicating that the door had been purchased at 8:50 A.M. on May 2, was found in the defendant's van. A videotape showed a van in the parking lot of the Home Depot on that date that the police believed belonged to the defendant. Afterward, the defendant claimed that he had breakfast at a McDonald's restaurant in the East Boston section of Boston. At approximately 9:15 A.M., the defendant alleged that he telephoned Alicia from a nearby public telephone, spoke with her briefly about medical test results, drove to Waltham, arrived there about 10:30 A.M., and worked on installing the door until 2 P.M.

According to Yolanda Louis, she was not at home during the time that the defendant installed the door. However, when she paged him at 1 P.M. to inquire if the door had been installed, the defendant told Louis that he was at the Home Depot store in Waltham picking up the door. When Louis arrived home later in the afternoon, the project had been completed, although the defendant had hung the new door on the old frame, rather than replacing the entire frame as Louis had expected. A postal route inspector, who had been tracking the delivery route in Louis's neighborhood, walked by her home around 10:35 A.M. and did not observe anyone working on the front or side of the house. However, Virginia Valverde, who rented the second floor of Louis's home, remembered hearing someone working around 10:30 A.M. on the day of the murder. She did not see who was making the noise. When Valverde got out of bed thirty to forty-five minutes later, she saw a white van parked outside the house. It was the same van that had been parked at the house when other work had been performed by the defendant, and it was gone when Valverde left for work around 3:40 P.M.

When the police investigated the crime scene, they found no signs of forced entry, the locks were not broken, and nothing was amiss inside the apartment, except for a knocked over ashtray in the bedroom. The police discovered bloodstains only in the bedroom where Alicia's body was found. There were no fingerprints that could be lifted, and the footwear impressions taken by the police did not match any footwear taken from the defendant. Tests performed on the defendant's jacket, hat, gloves, and cellular telephone,...