Commonwealth v. Torres

• Decision Date: 18 August 2014
• Docket Number: SJC–10849.
• Citation: 469 Mass. 398,14 N.E.3d 253
• Parties: COMMONWEALTH v. Jose TORRES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

469 Mass. 398

14 N.E.3d 253

COMMONWEALTH

v.Jose TORRES.

SJC–10849.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 11, 2014.

Decided Aug. 18, 2014.

Emanuel Howard for the defendant.

Donna Jalbert Patalano, Assistant District Attorney (David A. Deakin, Assistant District Attorney, with her) for the Commonwealth.

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

Opinion

SPINA

, J.

The defendant was convicted of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty. He filed a motion for a new trial alleging ineffective assistance of counsel, and he requested an evidentiary hearing.

The trial judge denied the motion without a hearing. Her indorsement in the margin said, “for the reasons stated in [the Commonwealth's] opposition.” On appeal the defendant alleges error in the denial of his motion for a new trial, the judge's failure to make findings, and the judge's failure to hold an evidentiary hearing on the motion. We affirm the conviction and the denial of the defendant's motion for a new trial. We decline to exercise our power under G.L. c. 278, § 33E

.

1. Background. The defendant moved into his girl friend's third-floor apartment in the Dorchester section of Boston in the middle of February, 2008. His girl friend, the victim, had four children, the oldest of whom was six years old. On March 8, 2008, Kristina Ortiz visited the victim at her apartment. The defendant and the victim's four children were there. As Ortiz was leaving, the defendant made a disparaging remark about the victim's children.

That evening the victim sent her six year old son down to the first-floor apartment of a neighbor three times to ask the neighbor to come up to his mother's apartment. Each time the neighbor said she would be right up, but became distracted by her own children and failed to appear. At 9 P.M. the defendant went down to the first-floor apartment and told the neighbor that his “wife was waiting” for her. The neighbor went up to the victim's apartment at around 9:30 P.M. The victim asked the neighbor if the neighbor knew where she could get some cocaine. The neighbor was surprised because she knew the victim was trying to stop using cocaine. The neighbor said she did not know, and left after a brief conversation.

Sometime between 2 and 3 A.M. on March 9 the first-floor neighbor heard “an unusual thud” from an apartment above hers. The victim's apartment was two floors directly above her apartment, but the neighbor could not tell if the noise had come from the victim's apartment. Shortly thereafter she heard footsteps coming down the stairs. She went back to bed.

At about 11:15 A.M. on March 9 the victim's two eldest children appeared at the first-floor neighbor's apartment. The oldest child said, “My mommy and daddy had a fight and he killed her. She's dead.” He added that the defendant had left. The next oldest, who was five years old at the time of the incident, testified at trial to the physical beating he saw the defendant inflict on his mother. He saw the defendant push her under a leg of the kitchen table, then sit on the table. The defendant then locked the children

in their bedroom.² The neighbor went upstairs and found the victim lying lifeless on the kitchen floor in a pool of blood. An electrical cord was pulled tight around her neck. The kitchen was in a state of disarray: furniture was overturned, the kitchen table was broken, and laundry was strewn about the room. The neighbor gathered the children, brought them to her apartment, and telephoned the police.

In the meantime, at about 10 A.M. on March 9, the defendant had gone to the home of Doris Serrano, where the defendant's father lived in the basement. He told his father that the victim had “kicked [him] out.” His father asked about scratches on the defendant's face. The defendant explained that the victim had scratched him. The defendant left his duffle bag and knapsack in his father's room and went out to have a beer. Later that afternoon the defendant visited his cousin Iliana Pagan (Serrano's daughter), who was a close friend of the victim. Pagan's fiancé was present. The defendant explained that the victim had scratched his face during an argument over drugs. During the defendant's visit Pagan received a telephone call in which she learned that the victim had been found dead in her home. Pagan burst into tears. When her fiancé asked what was wrong, she broke the news in a voice loud enough for the defendant to hear. The defendant said nothing. He bowed his head and put his face in his hands.

Police tried to locate the defendant. They went to Serrano's apartment and asked if Serrano would get in touch with him. Serrano reached the defendant by cellular telephone and told him that his father was looking for him. The defendant returned to Serrano's apartment within minutes. The police asked him to accompany them to Boston police headquarters for questioning. He agreed.

The defendant made a statement that was audiorecorded by police. He told police that he loved the victim and was supposed to marry her. He described what had happened the night of March 8, saying that the victim went “bi-polar” on him. He tried to hug her, but she scratched his face. She threatened to kill herself and call the police if he did not leave. He gathered all his belongings into a duffle bag (which was “heavy”) and a backpack, and then left. He took a bus to his father's home, arriving at about 1 A.M. He denied striking the victim or killing her. He also said he loved her children. The defendant said he could not have hit the victim

with the kitchen table because he has arthritis

and scoliosis, and could not lift heavy objects.

The pathologist who performed the autopsy determined that death was caused by a combination of ligature strangulation (probably by the electrical extension cord found around the victim's neck) and a sharp incision to the front of the victim's neck that severed her right carotid artery and jugular vein, and completely divided her trachea (windpipe). The strangulation occurred before the incision wound

. The victim had suffered blunt trauma to her head. She also had been exposed to a caustic chemical, such as bleach, after death. The pathologist could not determine if the incision wound was caused by drawing a sharp blade from right to left or from left to right.

Police recovered the duffle bag and backpack the defendant had left in his father's room. Inside the duffle bag was a “CharlieCard,” a fare card used for Massachusetts Bay Transportation Authority (MBTA) services, that had been used at 11:33 P.M. on March 8 on an MBTA bus that passed within a few blocks of the victim's apartment. Also inside the duffle bag was a receipt from a 7–Eleven store that evidenced a cash purchase at 12:02 A.M. on March 9, 2008. The backpack contained personal items, including a notebook, a pair of sandals, and some clothing.

The notebook had served as a journal. The defendant had made an entry on January 11, 2008, in which he wrote:

“Today was a real good day. But out of nowhere I got filled with rage and a lot of anger for no apparent reason. I'm sick and tired of my mental illness. I can't control my actions. I'm afraid that one day I'm going to blow-up on someone. I'm on my meds like I'm supposed to be.... It's like all the people who done me wrong are targets. The way I see it it is like one thing in my mind, Liquidation time. Vaporize all the wrong doer's to me and my life.”

The tread on the defendant's left sandal was similar in size and pattern to a footwear impression made in blood within a few feet of the victim's body. The impression left at the crime scene lacked sufficient detail to support a definitive comparison.

The victim was found to be a potential source of deoxyribonucleic acid (DNA) evidence recovered from reddish-brown stains on the heel of the defendant's right sandal, three areas on the defendant's duffle bag, and the handle and blade of a knife found in the victim's kitchen sink, as well as a brown stain on the

defendant's shirt, where 1 in 39 quintillion Caucasians, 1 in 1.7 sextillion African Americans, and 1 in 260 quadrillion Southeastern Hispanics would have the same genetic profile. The victim was also determined to be a possible source of DNA recovered from reddish-brown stains on the defendant's denim pants containing a mixture of DNA from two individuals on the defendant's denim pants, where 1 in 44 trillion Caucasians, 1 in 2.5 quadrillion African Americans, and 1 in 1.8 trillion Southeastern Hispanics would have the same genetic profile. Both the victim and the defendant were determined to be potential contributors to a mixture of DNA from three or more individuals found on the upper half of the sole of the defendant's right sandal.

The defense theory was that the defendant did not kill the victim. He had no motive to kill the victim, whom he loved, and he left her apartment after they argued. He contended there was not enough time between the visit by the first-floor neighbor at 9:30 P.M. and the CharlieCard activity at 11:33 P.M. for him to kill the victim, pack his belongings, and attempt to cover his tracks at the scene with bleach or other caustic substance.

2. Standard of review. The defendant asserted multiple claims of ineffective assistance of counsel in his motion for a new trial. Because he has been convicted of murder in the first degree and his appeal from the denial of his motion for a new trial has been consolidated with his direct appeal, we consider his claims of ineffective assistance of counsel to determine if any error has created a substantial likelihood of a miscarriage of justice, as required by G.L. c. 278, § 33E

. This standard of review is more favorable to the defendant than the constitutional standard for determining ineffective assistance of counsel. See Commonwealth v. Wright, 411 Mass. 678, 682, 584 N.E.2d 621 (1992). Under this more favorable standard,...