Commonwealth v. Lao

• Decision Date: 13 June 2011
• Docket Number: SJC–10700.
• Citation: 948 N.E.2d 1209,460 Mass. 12
• Parties: COMMONWEALTHv.Agapito LAO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

460 Mass. 12

948 N.E.2d 1209

COMMONWEALTH

v.Agapito LAO.

SJC–10700.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 8, 2011.Decided June 13, 2011.

Stewart T. Graham, Jr., for the defendant.Paul B. Linn, Assistant District Attorney (Mark T. Lee, Assistant District Attorney, with him) for the Commonwealth.Present: IRELAND, C.J., SPINA, BOTSFORD, GANTS, & DUFFLY, JJ.SPINA, J.

The defendant appeals from his conviction of the deliberately premeditated murder of his estranged wife in May, 2000. He asserts error in (1) the admission of evidence of a conversation between the victim and their daughter that supplied motive for the murder; (2) the denial of his motion for a mistrial arising out of a witness's unanticipated change in her testimony, and the disclosure of the defendant's previous trial ¹ during the Commonwealth's direct examination of the witness; (3) the prosecutor's use during closing argument of an erroneous time-line chart, and calling for a conviction on less than proof beyond a reasonable doubt; (4) the judge's refusal to give a so-called Bowden instruction, see Commonwealth v. Bowden, 379 Mass. 472, 485–486, 399 N.E.2d 482 (1980); and (5) a jury instruction that failed adequately to explain deliberate premeditation. We affirm the conviction and decline to reduce the degree of guilt or order a new trial pursuant to our power under G.L. c. 278, § 33E.

1. Background. The defendant and the victim had three children. They lived in an apartment in Chelsea. The defendant exerted considerable control over his wife. He would not allow her to have a driver's license, and he consistently denied visits by friends and relatives. He eavesdropped on her telephone conversations. They argued often, and he was physically abusive. One of their sons once heard the defendant threaten to kill the victim if she left him. The defendant and the victim had separated for about one year before the murder, but he had continued his efforts to control her life. The victim kept their Chelsea apartment.

The victim began dating a man she had met three years before. He had moved to Brooklyn, New York, and she began to visit him there. They agreed he would move into her Chelsea apartment, which he did, on May 1, 2000.

On the evening of April 30, 2000, the victim and the defendant went out to dinner. Their daughter, who had been sleeping, was awakened by the sound of the victim screaming and crying as she returned home. She told her daughter that they went out to dinner because she wanted to tell the defendant she intended to file for divorce, and that her boy friend would be moving in the next day. She said the defendant had just tried to run her over with his car.

On May 1, the victim paged the defendant from a store and asked him to help her carry some groceries home. He arrived in a white van he used in his business as a self-employed contractor. He drove the victim to her apartment and helped her carry the groceries upstairs. That night, the victim's boy friend arrived at her apartment with his belongings.

At about 8 a.m. the next morning, May 2, the boy friend left to apply for a job. The victim was alive at the time. Between 8:30 and 8:55 a.m., two neighbors noticed a white van parked on the street near the victim's apartment building. Between 9 a.m. and 10 a.m., Jose Santiago, another tenant in the victim's apartment building, arrived there with his brother. A tire on his car was flat, and he walked to the rear of the apartment building to get some tools to fix the tire. The defendant, whom he knew, was walking down the driveway toward the street. Santiago greeted the defendant but received no response.

Santiago also encountered Francisco Guzman, the landlord, at the rear of the building. Guzman was working on a car. They talked for a few minutes. Santiago and Guzman both noticed that the back door to the building was open. Guzman had gone outside to work on his car sometime between 8:45 a.m. and 9:30 a.m. Just before he went out he heard a “dragging” sound coming from the master bedroom of the victim's apartment. He locked the back door of the building on his way out.

The victim's boy friend returned to the apartment sometime after 10 a.m. He found the victim, unresponsive, on her bed. He saw blood on her left side, and her neck was black. He promptly telephoned 911. Chelsea police were dispatched at 10:14 a.m.² The victim was transported by ambulance to a nearby hospital. She died on May 17, 2000, due to strangulation.

The defendant gave a statement to police on the afternoon of May 2, 2000. He said he had left his home at about 8 a.m. to buy a door at the South Bay Home Depot store for a client in Waltham. He then bought breakfast at a McDonald's restaurant near Meridian Street in the East Boston section of Boston. At about 9:15 a.m. he telephoned the victim to inquire about the results of a medical test he had undergone. He then drove to his client's home in Waltham via Routes 16 and 60, stopping for gasoline en route. He arrived at his client's home at about 10:30 a.m., where he worked until 2 p.m., installing the door.

Police investigated the defendant's potential alibi, confirming that he purchased a door at the South Bay Home Depot store at 8:50 a.m. on May 2, 2000. Police also confirmed that the defendant had installed a door at his client's home in Waltham on that day. Police determined that it would take about fifteen minutes to drive from the store to the McDonald's restaurant where the defendant said he bought breakfast, and about seven minutes to drive to the victim's apartment in Chelsea. That particular restaurant is not on a direct route from the Home Depot store to the client's Waltham home, and there are at least six other McDonald's restaurants on a direct route from the Home Depot store to the client's Waltham home. A State police lieutenant drove at “normal speed” from the McDonald's restaurant to the client's Waltham home, following the route indicated by the defendant. With a delay at a train crossing, the trip took forty-three minutes.

The sole defense witness, a tenant who lived at the Waltham home of the defendant's client, testified that she was awakened by construction noises at about 10:50 a.m. or 11 a.m. on May 2, 2000. She looked out her window and saw a white van. A postal supervisor who was monitoring the route of a letter carrier on that day, keeping detailed records, testified that the letter carrier began delivering mail at 10:35 a.m. on May 2, 2000, on the street in Waltham where the client's house was located. The letter carrier also testified. He estimated it takes about five minutes to reach the end of the street. Neither the supervisor nor the letter carrier heard any construction noise nor did they see a white van on the street that morning.

2. Hearsay evidence. The prosecutor asked the defendant's daughter if the victim told her on April 30, 2000, what “caused him to try to run her over” with his car. The defendant argues that this question called for testimony that was speculative as to the defendant's state of mind, and as such was objectionable. There was no objection, thus our review is under the standard of a substantial likelihood of a miscarriage of justice. See Commonwealth v. Wright, 411 Mass. 678, 681, 584 N.E.2d 621 (1992).

We agree with the defendant that the question was objectionable. It called for speculation about the defendant's state of mind. See Commonwealth v. Millyan, 399 Mass. 171, 183, 503 N.E.2d 934 (1987). However, the answer would have been admissible as an excited utterance in response to a properly phrased series of questions directed at the cause of the victim's crying and screaming at that moment. “The underlying exciting event may be proved by the excited utterance itself.” Commonwealth v. King, 436 Mass. 252, 255, 763 N.E.2d 1071 (2002). See Mass. G. Evid. § 803(2) (2011). The underlying exciting event, the defendant's attempt to run over the victim after she told him she was filing for divorce and that her boy friend was moving in that night, was relevant evidence as to the defendant's motive to kill. There was no substantial likelihood of a miscarriage of justice.

After the daughter testified about the victim's explanation for her emotional state, the prosecutor asked her whether the victim then did something. She testified that the victim “paged [the defendant].” The prosecutor asked if there was a response to the page, to which the daughter testified the telephone rang, the victim answered the telephone and said to the defendant, “Why did you do that?” while she was “still crying hysterically, shaking, [and] screaming.” There was no objection. The defendant contends that this was not an excited utterance. We disagree. The evidence indicated the victim continued to be under the influence of the defendant's attempt to run her over, and the absence of any abatement of that excitement during the telephone call created an inference that she was indeed talking to the defendant. There was no error.

3. Motion for a mistrial. The defendant argues on appeal that it was error to deny his motion for a mistrial, or alternatively, to strike the testimony of a witness, the basis of whose testimony changed from that on which she was allowed to testify, and because the prosecutor's examination of the witness disclosed the fact of the defendant's prior trial.

The prosecutor notified defense counsel three days before trial was scheduled to begin that the daughter of Francisco Guzman, the landlord, had just disclosed for the first time to an agent of the Commonwealth, that she saw the defendant descending the back stairs from the victim's apartment on the morning of the murder. Defense counsel filed a motion for a continuance to investigate the accuracy of this information. He also requested a voir dire of the witness, which was conducted the day before trial commenced.

The witness testified at the voir dire that she met...