Commonwealth v. Martinez

• Decision Date: 10 April 2000
• Citation: 431 Mass. 168,726 NE 2d 913
• Parties: COMMONWEALTH v. EDWARD MARTINEZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

431 Mass. 168

726 NE 2d 913

COMMONWEALTH v. EDWARD MARTINEZ.

Supreme Judicial Court of Massachusetts, Middlesex.

December 8, 1999.

April 10, 2000.

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

Jane Larmon White, Committee for Public Counsel Services, for the defendant.

David W. Cunis, Assistant District Attorney, for the Commonwealth.

ABRAMS, J.

Convicted of murder in the first degree on the theory of deliberate premeditation, the defendant appeals. Prior to the appeal being heard, the defendant moved to strike the original brief filed on his behalf. A single justice of this court declined to strike the brief¹ and a motion for a new trial was remanded to the Superior Court. After hearing, the Superior Court judge denied the defendant's motion for a new trial. The defendant appeals from his conviction of murder in the first degree and from the denial of his motion for a new trial. The appeals have been consolidated. For the reasons stated in this opinion, the defendant's conviction is affirmed. We decline to exercise our power under G. L. c. 278, § 33E, to order a new trial or entry of a lesser degree of guilt on the conviction of murder in the first degree.²

1. Facts. (a) The events leading up to the murder. We summarize the facts, viewing the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Salemme, 395 Mass. 594, 595 (1985). The defendant, Edward Martinez, was convicted of the premeditated murder of Freddys Abreu. The defendant and the victim lived in the same apartment building. The defendant shared an apartment with his father, his girl friend, Melissa Gaulin, and Gaulin's baby. The victim shared an apartment with his wife, Jaquay Abreu, and their daughter. The two couples were friendly with one another and visited one another's apartments. Jaquay Abreu, the victim's wife, testified that she also spoke with the defendant on the telephone.

The victim sold crack cocaine and, shortly after moving into the apartment building, asked the defendant to join him in selling drugs. The defendant and the victim sold crack cocaine out of the apartment building for approximately two or three months before the murder.

Sometime before the murder, the victim purchased a silver handgun. Because the victim's wife objected to having a handgun in their home, the victim asked the defendant to keep the gun for him. The victim also gave the defendant approximately $1,000 worth of cocaine to hold. One day later, the victim asked the defendant to return the gun and the cocaine. The defendant refused to do so. An argument ensued. Two days later, the defendant's girl friend, Gaulin, reported to the police that the victim had been looking for the defendant and had threatened to kill her. Afraid, Gaulin went to stay with the defendant's sister.

(b) The murder. The next day, the victim, who apparently was friendly with the defendant's father, went to the defendant's apartment with a frozen dinner for the defendant's father. At approximately 10 P.M., the victim left the apartment building in his car and drove to the defendant's sister's apartment. The defendant came out to the victim's car along with Jacob Sanchez, the defendant's nephew. There was a brief argument, after which the victim drove away.

According to the testimony of Gaulin, Jacob Sanchez told the defendant to "get the gun." Gaulin saw the defendant take the silver gun from a bag in his sister's apartment and put it back. She then went upstairs. The defendant and Sanchez left.

At approximately 10:20 P.M., the victim returned to his apartment building. His wife heard his car pull up and looked out the window. She saw three men, dressed in dark clothing and hooded sweatshirts, approach her husband's car. She recognized one of the men as the defendant by his voice. The victim's wife saw the defendant pull out a gun and fire it twice at the victim. She recognized the gun as the silver gun the victim had given the defendant several days earlier.

That night, the defendant returned to his sister's apartment alone. Gaulin noticed that he was shaking and sweating. He told her, "I did it," or "[w]e did it," and stated that he "didn't want to kill him." The defendant also told Gaulin that he had gotten rid of the gun.

(c) The defendant's arrest. The night of the murder, the victim's wife told the police that she had witnessed the defendant murder her husband. The police began a search of the area. The next morning, the police learned that the defendant was at his sister's apartment. When the police found him, the defendant agreed to speak with them at the police station.

The defendant initially denied knowing the victim. Later in the interview, however, the defendant admitted to selling crack cocaine for the victim. The defendant also told the police that he had severed his relationship with the victim several days earlier because the victim was not paying him enough. The defendant said that he knew the police were looking for him and that he had run to another floor in the apartment building to hide earlier that day. When the police asked why the defendant thought the police were looking for him, the defendant terminated the interview.

(d) The trial. The defendant's claims of errors center on his own testimony and that of two of the Commonwealth's witnesses — Jaquay Abreu and Gaulin. Jaquay Abreu, the victim's wife, testified that she saw the defendant shoot her husband. She stated that she identified the defendant as the shooter based on his voice and on what she could see from her window. The force of this evidence was strengthened by Abreu's testimony as to her knowledge of the defendant because of visits and telephone conversations with the defendant. Gaulin described the defendant's behavior before and after the murder, including his inculpatory statements immediately after the murder.

The defendant proceeded on the theory that the victim's wife misidentified the murderer. The defendant testified that he and the victim argued on the night of the murder over the defendant's refusal to return the cocaine and the gun. The defendant also testified that his nephew, Jacob Sanchez, suggested they kill the victim.

According to the defendant's testimony, he pulled the gun out of a bag, but returned it to the bag when his girl friend became upset. The defendant's testimony indicated that he returned to his apartment building on the night of the murder because he was concerned about his father's safety. According to the defendant, he was knocking on the door of his apartment when he heard the two shots that killed the victim. The defendant's strategy focused on implicating Sanchez as the murderer.

2. Motions for required finding of not guilty. The defendant claims that the judge erred in denying his motions for a required finding of not guilty. According to the defendant, the evidence was insufficient on the element of premeditation.

In reviewing the denial of a motion for a required finding of not guilty, we consider whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). Viewed in the light most favorable to the Commonwealth, the evidence would permit a rational juror to infer that the defendant, after quarreling with the victim, took a gun from his sister's home, rode to the victim's location, pointed the firearm at the victim's head, and fired. "The use of a firearm in the killing is sufficient to support a verdict of murder in the first degree based on deliberately premeditated malice aforethought.... Evidence that the defendant brought a gun with him to the scene ... is evidence of planning" (citations omitted). Commonwealth v. Williams, 422 Mass. 111, 123 (1996). There was sufficient evidence to support a conviction.

3. Errors at trial. (a) Admission of the threat. Gaulin testified to the defendant's inculpatory statements and behavior after the murder. Gaulin became upset during her testimony. The judge ordered a recess, during which the prosecutor suggested that Gaulin's demeanor might be attributable to threats that the defendant's niece had made against Gaulin. According to Gaulin's subsequent testimony, the defendant's niece said that if Gaulin "put her uncle in jail that she'll come and kill [Gaulin].

Because Gaulin asked the prosecutor if she could "get in trouble for testifying," the judge became concerned that Gaulin was afraid she might incriminate herself. The judge ordered that an attorney unrelated to the case be brought in to speak with Gaulin. The attorney spoke in private with Gaulin, and then told the judge that he had "just talked to a nervous young woman who stated that she has been threatened. She's concerned about that...." The attorney also reported that Gaulin was generally nervous about testifying but that no privilege under the Fifth Amendment to the United States Constitution applied. Based on the attorney's report, the judge permitted the Commonwealth to question Gaulin before the jury, over the defendant's objection, about the threat.

The defendant claims that the judge erred in allowing Gaulin's testimony as to the threat.³ We agree. Because the defendant objected at trial, we review to determine whether there was prejudicial error. See Commonwealth v. Vinnie, 428 Mass. 161, 164 n.3, cert. denied, 525 U.S. 1007 (1998) (issue preserved by objection at trial). We conclude that there was not.

"Evidence is relevant if it has a rational tendency to prove a material issue. Whether evidence is relevant in any particular instance, and whether the probative value of relevant evidence is outweighed by its prejudicial effect, are questions within the sound discretion of the judge." Commonwealth v. Valentin, 420 Mass. 263, 270 (1995), quoting Commonwealth v. Dunn, 407 Mass. 798, 807 (1990).

We conclude that the...