Commonwealth v. Perez, SJC–10208.

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtPresent: IRELAND, C.J., SPINA, CORDY, & DUFFLY, JJ.
Citation954 N.E.2d 1,460 Mass. 683
Decision Date23 September 2011
Docket NumberSJC–10208.
PartiesCOMMONWEALTHv.Ramon PEREZ.

460 Mass. 683
954 N.E.2d 1

COMMONWEALTH
v.
Ramon PEREZ.

SJC–10208.

Supreme Judicial Court of Massachusetts, Essex.

Argued March 11, 2011.Decided Sept. 23, 2011.


[954 N.E.2d 6]

Elaine Pourinski for the defendant.David F. O'Sullivan, Assistant District Attorney (Gerald Shea, Assistant District Attorney, with him) for the Commonwealth.Present: IRELAND, C.J., SPINA, CORDY, & DUFFLY, JJ.DUFFLY, J.

[460 Mass. 684] A jury in the Superior Court convicted the defendant[460 Mass. 685] of murder in the first degree in the shooting death of Henry Guzman, and of intimidation of a witness. The defendant appeals from the convictions, claiming that the trial judge committed reversible error when he (1) questioned the venire about whether the potential jurors believed the Commonwealth could prove its case beyond a reasonable doubt without presenting scientific evidence; (2) failed to instruct the jury pursuant to Commonwealth v. Bowden, 379 Mass. 472, 399 N.E.2d 482 (1980); (3) permitted a witness to express an opinion as to the culpability of the defendant; (4) allowed the Commonwealth to introduce evidence of the defendant's prior misconduct, a privileged telephone conversation between the defendant and his wife, and excerpts from a diary that lacked foundation and were not authenticated; and (5) denied the defendant's motion for a required finding of not guilty on the intimidation of a witness charge. The defendant also raises several claims of ineffective assistance of counsel. We affirm the convictions and decline to exercise our authority under G.L. c. 278, § 33E, to order a new trial or reduce the murder conviction to a lesser degree of guilt.

1. Background and prior proceedings. As to the murder indictment, the Commonwealth proceeded on theories of deliberate premeditation and felony-murder, with armed robbery as the predicate felony. The jury found the defendant guilty under both theories.

The jury could have found the following facts. The defendant and the victim, Henry Guzman, had both been employed at a furniture rental center until the defendant was terminated from his job in early November, 2001; they had also engaged in drug transactions.

On December 13, 2001, the night of the murder, the victim was living in Lawrence with his girl friend, Emily German, and their daughter; he arrived home from his job at approximately 9 p.m. Fifteen minutes later, he received a call on his cellular telephone, and after a brief conversation, he left the apartment, declining to tell German where he was going. He never returned. At 10:30 p.m., a Lawrence police officer engaged in a routine patrol observed the victim's empty automobile behind a supermarket distribution warehouse. A check of the registration turned up nothing suspicious, and the officer left.

[954 N.E.2d 7]

[460 Mass. 686] That same night, the defendant spent the early part of the evening at home in Haverhill with his girl friend, Michelle Chisholm, and their son. Around 8:30 p.m., the defendant had a heated, twenty-five minute telephone conversation with Kerrilee Dube, his estranged wife. After this call, he engaged in a brief telephone conversation and then told Chisholm that he was “going to meet Henry.” The defendant left the apartment driving a 1996 Ford Explorer vehicle, one of two vehicles shared by the couple.

The defendant and the victim communicated by cellular telephone as the defendant traveled from his apartment in Haverhill to the warehouse in Lawrence.1 The defendant shot the victim at close range, killing him with a single gunshot to the back of the head. The defendant dragged the body down an embankment behind the warehouse.

The defendant subsequently returned to his apartment, stripped off all his clothes, and put them in a plastic trash bag. He and Chisholm drove to Plaistow, New Hampshire, in the Ford Explorer. On the defendant's instruction, Chisholm put the bag with the clothes in a trash barrel that had been set out for collection. The couple drove to a car wash where the defendant washed the vehicle, paying particular attention to the tires; the defendant and Chisholm thoroughly vacuumed the vehicle.

In the days after his disappearance, the victim's family and friends filed a number of missing persons reports and provided police with lists of telephone numbers for calls made to and from the victim's cellular telephone on December 13, 2001. The defendant's telephone number appeared on both of those lists. On December 20, 2001, the defendant was interviewed by police.2 After that interview, he removed clothing from his closet, asked [460 Mass. 687] Chisholm for gloves and a shovel, and told her that “he needed to move the body” because it was in a “ditch” or under a “cliff” near a warehouse; although it could not be seen “unless you go to the edge and look down,” he “needed to cover it.”

On December 27, 2001, police searched the area surrounding the warehouse and discovered the victim's body under a pile of brush about twenty feet from the warehouse parking lot.3 The body appeared to have been dragged to that location. The victim had been killed by a single gunshot wound to the back of the head with a .45 caliber projectile. Autopsy examination showed that he had been shot at extremely

[954 N.E.2d 8]

close range and that the shot would have rendered him immediately unconscious. Tire tracks and skid marks were observed in the warehouse parking lot near where the body was located.4 In a later search of the area, a single .45 caliber cartridge casing was found in the warehouse parking lot, about thirty to forty yards away from the location where the victim's body had been discovered.5

The Commonwealth's theory at trial was that the murder was committed in the course of a robbery. After returning to his apartment on the night of December 13, 2001, the defendant removed fourteen or fifteen “vacuum-packed” marijuana “bricks” from a shopping bag that had not been present in the [460 Mass. 688] apartment earlier that evening. The defendant told Chisholm he would “get rid of [the bricks] in the morning” and that he would sell them “cheaper to get rid of them faster.” 6 Prior to his meeting with the victim, the defendant, who was unemployed at the time, took no money out of the joint bank account he shared with Chisholm. The next day, the defendant paid Dube one hundred dollars in weekly child support for the first time in more than a month.

While in custody awaiting trial, the defendant wrote several letters to Dube and Chisholm asking them to recant their grand jury testimony or to not testify against him at trial. Based on the letter to Chisholm, the defendant was indicted on a charge of intimidation of a witness pursuant to G.L. c. 268, § 13B.7

2. Juror voir dire. The defendant contends that the trial judge abused his discretion by questioning members of the venire about whether they believed the Commonwealth must present scientific evidence to prove its case beyond a reasonable doubt. The defendant claims the questioning denied him the right to a fair trial by an impartial jury as guaranteed by the Sixth Amendment to the United States Constitution and by art. 12 of the Massachusetts Declaration of Rights. See Commonwealth v. McCowen, 458 Mass. 461, 494, 939 N.E.2d 735 (2010); Commonwealth v. Seabrooks, 433 Mass. 439, 442, 743 N.E.2d 831 (2001).

“We afford a trial judge a large degree of discretion in the jury selection process.” Commonwealth v. Vann Long, 419 Mass. 798, 803, 647 N.E.2d 1162 (1995). The judge's duty is to “examine jurors fully regarding possible bias or prejudice where ‘it appears that there is a substantial risk that jurors may be influenced by factors extraneous to the evidence presented to them.’ ” Commonwealth v. Garuti, 454 Mass. 48, 52, 907 N.E.2d 221 (2009), quoting

[954 N.E.2d 9]

Commonwealth v. Morales, 440 Mass. 536, 548, 800 N.E.2d 683 (2003). See generally Commonwealth v. Toolan, 460 Mass. 452, 466–468, 951 N.E.2d 903 (2011). In deciding juror impartiality, it is sufficient for the judge to “determine whether jurors [can] set aside their own opinions, [properly] [460 Mass. 689] weigh the evidence ... and follow the instructions of the judge.” Commonwealth v. Bryant, 447 Mass. 494, 501, 852 N.E.2d 1072 (2006), quoting Commonwealth v. Leahy, 445 Mass. 481, 495, 838 N.E.2d 1220 (2005). “The scope of a voir dire is in the sound discretion of the trial judge and will be upheld absent a clear showing of abuse of discretion.” Commonwealth v. Garuti, supra, and cases cited.

At the request of the Commonwealth, the judge asked potential jurors during individual voir dire whether they believed “the Commonwealth is never able to prove a case beyond a reasonable doubt unless it presents scientific evidence to corroborate witness testimony.” Thirty-eight members of the venire responded to some variation of this question 8 either affirmatively or ambiguously; of these, thirty-one were excused for cause.9

The question regarding scientific evidence was intended to ferret out potential juror bias regarding the so-called “CSI effect,” a theory which posits that “jurors who watch forensic science television programs like ‘CSI’ will hold prosecutors to an unreasonably high standard of proof because of the prowess displayed by fictional forensic scientists,” and will either acquit unjustly or fail to follow a judge's instructions if forensic evidence is not offered as part of the government's case.10 Commonwealth v. Vuthy Seng, 456 Mass. 490, 503, 924 N.E.2d 285 (2010). The defendant did not object to the question. Because the issue is unpreserved, we review to determine whether there was error, and, if so, whether it created a substantial likelihood of a miscarriage[460 Mass. 690] of justice. See Commonwealth v. Wright, 411 Mass. 678, 681, 584 N.E.2d 621 (1992).

Although anecdotal reports and media coverage have fueled concerns within the legal community about the so-called “CSI effect,” there is little empirical evidence...

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84 practice notes
  • Commonwealth v. Andrade, SJC-11529
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • October 5, 2021
    ...465 Mass. 330, 340, 990 N.E.2d 528, cert. denied, 571 U.S. 1014, 134 S.Ct. 628, 187 L.Ed.2d 407 (2013), quoting Commonwealth v. Perez, 460 Mass. 683, 691, 954 N.E.2d 1 (2011), and would not "automatically vote to acquit due to lack of scientific evidence," see Gray, supra at 339, 990 N.E.2d......
  • Commonwealth v. Huang, SJC-11575
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 16, 2022
    ...concerning the defendant's lack of mental illness created a substantial likelihood of a miscarriage of justice.29 Commonwealth v. Perez, 460 Mass. 683, 689-690, 954 N.E.2d 1 (2011). B. Expert testimony. The defendant argues that Fife's rebuttal testimony that the defendant did not suffer fr......
  • Commonwealth v. Akara, SJC–10229.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 21, 2013
    ...of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) Commonwealth v. Perez, 460 Mass. 683, 702, 954 N.E.2d 1 (2011), quoting Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979). “Questions of credibility are to be......
  • Commonwealth v. Garcia, SJC–11127.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • October 29, 2014
    ..."any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Perez, 460 Mass. 683, 702, 954 N.E.2d 1 (2011), quoting Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979). We take this view of the evidence notwith......
  • Request a trial to view additional results
84 cases
  • Commonwealth v. Andrade, SJC-11529
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • October 5, 2021
    ...465 Mass. 330, 340, 990 N.E.2d 528, cert. denied, 571 U.S. 1014, 134 S.Ct. 628, 187 L.Ed.2d 407 (2013), quoting Commonwealth v. Perez, 460 Mass. 683, 691, 954 N.E.2d 1 (2011), and would not "automatically vote to acquit due to lack of scientific evidence," see Gray, supra at 339, 990 N.E.2d......
  • Commonwealth v. Huang, SJC-11575
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 16, 2022
    ...concerning the defendant's lack of mental illness created a substantial likelihood of a miscarriage of justice.29 Commonwealth v. Perez, 460 Mass. 683, 689-690, 954 N.E.2d 1 (2011). B. Expert testimony. The defendant argues that Fife's rebuttal testimony that the defendant did not suffer fr......
  • Commonwealth v. Akara, SJC–10229.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 21, 2013
    ...of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) Commonwealth v. Perez, 460 Mass. 683, 702, 954 N.E.2d 1 (2011), quoting Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979). “Questions of credibility are to be......
  • Commonwealth v. Garcia, SJC–11127.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • October 29, 2014
    ..."any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Perez, 460 Mass. 683, 702, 954 N.E.2d 1 (2011), quoting Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979). We take this view of the evidence notwith......
  • Request a trial to view additional results

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