Commonwealth v. Torres

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SJC-10849

COMMONWEALTH vs. JOSE TORRES.

Suffolk. April 11, 2014. - August 18, 2014.

Present: Ireland, C.J., Spina, Gants, Duffly, & Lenk, JJ.1

Homicide. Practice, Criminal, Capital case, New trial,
Assistance of counsel, Argument by counsel, Instructions to
jury. Evidence, Opinion, Expert opinion. Witness, Expert.

Indictment found and returned in the Superior Court
Department on June 26, 2008.

The case was tried before Elizabeth M. Fahey, J., and a
motion for a new trial, filed on October 19, 2011, was
considered by her.

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

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

1
Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
 2

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
 3

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:

2
The record does not reflect how the children left their
bedroom.
 4

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
 5

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
 6

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
 7

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 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
 8

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

(1992). Under this more favorable standard, we consider whether

there was error by trial counsel, regardless whether trial

counsel's performance fell measurably below that of an ordinary

fallible lawyer, and, if there was, whether the error was likely

to have influenced the jury's verdict. Id. However, a

strategic decision by an attorney constitutes error only if it

was manifestly unreasonable when made. See Commonwealth v.

Smith, 456 Mass. 476, 482 (2010).

A judge is required to conduct an evidentiary hearing on a

motion for a new trial only if a substantial issue is raised by

the motion or affidavits. See Commonwealth v. Wallis, 440 Mass.
 9

589, 596 (2003); Mass. R. Crim. P. 30 (c) (3), as appearing in

435 Mass. 1501 (2001). In that regard a judge considers the

seriousness of the issues raised and the adequacy of the

defendant's showing on those issues. See Commonwealth v.

DeVincent, 421 Mass. 64, 67 (1995). A judge is not required to

credit assertions in affidavits submitted in support of a motion

for a new trial, and may evaluate them in light of factors

pertinent to credibility, including bias, self-interest, and

delay. See Commonwealth v. Grant, 426 Mass. 667, 673 (1998). A

judge may rely on his or her knowledge of the trial and

evaluation of the witnesses and evidence at the trial when

reaching a decision on a motion for a new trial, including

whether to decide the motion without an evidentiary hearing.

See Commonwealth v. DeVincent, supra at 69.

The judge must make findings of fact necessary to resolve

the defendant's allegations of error of law in a motion for a

new trial. See Mass. R. Crim. P. 30 (b), as appearing in 435

Mass. 1501 (2001). A judge's failure to make findings required

by rule 30 (b) is "not fatal . . . where the ultimate conclusion

is clearly evident from the record," Commonwealth v. Lanoue, 392

Mass. 583, 586 n.2 (1984), or where we are satisfied that "on

review of the whole case manifest injustice would [not] result."

Commonwealth v. Preston, 393 Mass. 318, 322 n.4 (1984). See

Commonwealth v. Dunnington, 390 Mass. 472, 478 (1983).
 10

3. Discussion. We turn to the defendant's claims of

ineffective assistance of counsel.

a. The defendant faults trial counsel for failing to

exploit the time difference between the defendant's use of his

CharlieCard at 11:33 P.M. on March 8 and the "unusual thud"

heard by the first-floor neighbor on March 9 between 2 and 3

A.M. followed by the sound of footsteps she heard shortly

thereafter going down the stairs, both of which the Commonwealth

relied on to link the defendant to the killing. He also faults

counsel for failing to request an alibi defense and pursue a

third-party culprit defense (which he claims would explain the

thud and footsteps heard by the first-floor neighbor).

In his closing argument trial counsel did in fact highlight

inconsistencies in the timeline. However, the time of death had

not been established by the autopsy. The pathologist could only

opine that the victim had been dead more than twenty-four hours

by the time of the autopsy on March 11, 2008. Because it was

not clear precisely when death occurred, an alibi defense would

not likely have succeeded where the defendant did not have an

alibi for the time between 9:30 and 11:33 P.M. on March 8, when

the jury could have determined that the killing occurred.

Had trial counsel pursued a third-party culprit defense,

about which the defendant offers no details, the Commonwealth

was ready to offer evidence of the defendant's jailhouse
 11

confession to another inmate that included many details not

publicly known, together with a detailed diagram of the crime

scene. After trial counsel announced that the defendant would

not testify, the prosecutor decided not to call as a witness at

trial the inmate to whom the defendant had confessed. Counsel's

decision to make do with what he had rather than pursue a highly

risky strategy not likely to produce favorable results (but

likely instead to yield highly damaging admissions from the

defendant) was a reasonable tactical decision we infer from the

record. "Neither ineffectiveness nor a likelihood of a

miscarriage of justice arise from counsel making the best he can

out of the circumstances of the crime." Commonwealth v. Hung

Tan Vo, 427 Mass. 464, 471 (1998).

This theory of ineffectiveness was not supported by any

affidavit filed on behalf of the defendant.3 We are satisfied

that no substantial question was presented that required an

evidentiary hearing, and that on review of the whole case there

was no substantial likelihood of a miscarriage of justice in the

absence of written findings by the judge. The existence of a

reasonable tactical decision by trial counsel in proceeding as

he did is clearly evident from the record.

3
Trial counsel submitted an affidavit in response to
specific questions posed by appellate counsel concerning each
issue raised in the motion for a new trial (and on appeal).
Trial counsel's response was: "As to these topics, I cannot
remember whether I specifically considered these issues, or not;
however, I remember leaving 'no stone unturned' in this case."
 12

b. The defendant contends that trial counsel was

ineffective for failing to object to testimony by Serrano to the

effect that she lied to the defendant by telling him his father

was looking for him. She said she knew that if she had said the

police were looking for him he would not come. The defendant

argues that this was impermissible comment on his credibility.

See Commonwealth v. Triplett, 398 Mass. 561, 567 (1986).

Although probably objectionable, Serrano's remark did not

create a substantial likelihood of a miscarriage of justice.

Contrary to the defendant's assertion, the prosecutor did not

refer to, or even allude to, Serrano's statement in his closing

argument. Trial counsel elicited from Serrano on cross-

examination that she had been with the victim and the defendant

for about fifteen minutes on March 6, two days before the

victim's death, and that they appeared to be getting along.

Serrano detected no tension between them at the time. Moreover,

the defendant went with police voluntarily to give a statement,

offering no resistance. We are satisfied that Serrano's remark

was fleeting and isolated. It was hardly the kind of

prejudicial comment that permeates the testimony of a key

Commonwealth witness on a critical issue in the case such that a

new trial is required. Compare Commonwealth v. Triplett, supra.

Counsel was not ineffective.
 13

c. The defendant asserts that trial counsel was

ineffective for failing to recognize that the incision on the

victim's neck was caused by a left-handed person, for failing to

recognize from available information that the defendant was

right-handed, and for failing to consult with an appropriate

expert to show that the defendant could not have caused the

incision wound. This is the only claim of ineffective

assistance of counsel supported by affidavit.

The defendant presented the affidavit of a physician who is

a recognized expert on knife wounds and has testified as an

expert both for the Commonwealth and for defendants. Based on

the autopsy report and autopsy photographs, it was the

physician's opinion that "[t]he pattern of this incision [wound

to the neck] is most consistent with an assailant delivering the

incision using his left hand while positioned behind the

victim." The defendant filed an affidavit stating that he is

and always has been right-handed. Affidavits from his mother

and his older sister similarly attested to his right-handedness.

The defendant also submitted medical records indicating two

injuries purportedly consonant with right-handedness.

The defendant's assertions that trial counsel failed to

recognize critical details is purely speculative. In addition,

even if this defense had been presented to the jury, it likely

would not have influenced the jury's conclusion. See
 14

Commonwealth v. Wright, 411 Mass. at 682. The defendant told

the detectives who interviewed him, "I cannot lift heavy objects

. . . I cannot really grasp, like grasp, certain things . . . .

Any time I try to grasp something hard, all I feel is a pain and

it goes straight numb cuz you can feel the bone right here. I

don't do much lifting. I can't exercise." Although the

defendant may be right-handed, he told police he is unable to

use his major hand for rigorous projects. Moreover, he has not

claimed that he could not grasp something, such as a knife, with

his left hand and use it to cut the victim's throat. Nor has he

claimed that he would not have been able to strangle the victim

with an electrical cord. The defendant admitted carrying his

heavy duffle bag and his backpack when he left the victim's

apartment to go to his father's home. The jury could well have

believed that the defendant could not have cut the victim's

throat with his right hand, but instead used his left hand.

Moreover, the evidence strongly suggested that the victim's

throat was cut after she was strangled. The jury could have

concluded that the neck wound was inflicted after the victim

collapsed to the floor, not while the defendant was standing

behind her, as the defendant's expert implied. Cutting the

victim's throat while she was in that condition would not have

been difficult, even for someone with disabilities the defendant

claims to have.
 15

The defendant has not raised a substantial issue about his

right-handedness that would have required the judge to hold an

evidentiary hearing. The record strongly refutes a conclusion

that only a left-handed person could have cut the victim's

throat. Written findings were not required to resolve any

issues. We conclude that the defendant has not shown that

counsel was ineffective in failing to pursue this issue.

d. Contrary to the defendant's argument, trial counsel was

not ineffective for failing to request a Daubert-Lanigan

hearing, or otherwise failing to object to or moving to strike

the expert testimony concerning the comparison of the treads on

the defendant's footwear with a footwear impression made in the

blood at the crime scene. See Daubert v. Merrell Dow Pharms.,

Inc., 509 U.S. 579 (1993); Commonwealth v. Lanigan, 419 Mass. 15

(1994). The defendant emphasizes that of the four factors

considered by the Commonwealth's expert, namely, (1) pattern,

(2) size, and two individualizing factors -- (3) wear and tear,

and (4) distinctive (random) marks -- the witness acknowledged

that only factors (1) and (2) were similar, and because there

were insufficient details as to factors (3) and (4) to enable

the witness to conclude that they, too, were similar, the

witness should not have been permitted to give an opinion that

essentially was speculative. The expert opined that a bloody

footprint impression at the crime scene could have been made by
 16

the defendant's left sandal, but he could not give a definitive

opinion.

Judges have broad discretion in deciding whether to admit

expert testimony. Commonwealth v. Fitzpatrick, 463 Mass. 581,

603 (2012). The test is whether the testimony "will assist the

trier of fact to understand the evidence or to determine a fact

in issue." Mass. G. Evid. § 702 (2014). See Commonwealth v.

Dockham, 405 Mass. 618, 628 (1989). An expert opinion that is

not definitive, but expressed in terms of observations being

"consistent with" a particular cause, or words of similar

effect, does not render the opinion inadmissible on the ground

that it is "speculative." See Commonwealth v. Azar, 32 Mass.

App. Ct. 290, 302-303 (1992), S.C., 444 Mass. 72 (2005).

Here, the expert was asked if he had an opinion "to a

reasonable degree of scientific certainty" whether the

defendant's left sandal was "consistent with" the bloody

footprint observed at the crime scene. He said he had such an

opinion, and that the defendant's left sandal "could have" made

the bloody impression, but the impression "was not detailed

enough for a more definitive conclusion." Having explained to

the jury how he applied the four factors, he further explained

how they shaped his opinion, which essentially neither excluded

the defendant's sandal nor led him to opine regarding the

existence of a definitive match. Instead he was led to an
 17

inconclusive result. Trial counsel made this quite clear in his

cross-examination, that is, the expert's opinion did not express

the existence of a definitive match. The expert's opinion was

not improper. See Commonwealth v. Azar, supra.

The defendant contends that where only two out of the four

factors produced positive results, the expert's opinion did not

even rise to the level of a preponderance of the evidence and

thus was speculative. We disagree. There is no suggestion in

the record that a proper analysis requires a particular "score"

among the four factors. Rather, as with many areas of forensic

science, prescribed factors that must be applied when

considering a particular matter ultimately involve a matter of

judgment, and are intended to guide and shape the expert's

reasoning. How the expert proceeds with the application of

those factors is usually fertile ground for cross-examination.4

What is often crucial is how the expert presents his or her

opinion and analysis to the jury. Of particular concern is the

danger that the jury is misled into an understanding that the

"science" at hand is "hard" science, when in fact it is "soft"

science. There was no danger of that in this case. The jury

were given the visual images of the defendant's left sandal and

4
If the defendant had chosen to call an expert witness to
give an opinion that the footwear impression was not consistent
with the defendant's left sandal, relying on the same factors as
the Commonwealth's expert, we have no doubt that the opinion
would have been admissible.
 18

the bloody impression made at the crime scene, and the expert

led the jury through the factors he applied in his analysis.

Although the witness should not have been asked if he had an

opinion to a reasonable degree of scientific certainty but

instead should have been asked if he had an opinion to a

reasonable degree of certainty within the study of footwear

impression comparison, or comparable words, it was readily

apparent to the jury that the opinion given was a matter of

judgment, and not a scientific result driven by precise

mathematical calculations. See Commonwealth v. Pytou Heang, 458

Mass. 827, 848-850 (2011). It was made clear to the jury that

this was a matter they could weigh for themselves, and the judge

instructed them that they could accept or reject an expert's

opinion.

The evidence had probative value that was enhanced when

juxtaposed with the expert testimony about the DNA evidence from

the defendant's right sandal. The prosecutor did not argue

unfairly from the testimony of the expert on footwear

impression, as the defendant contends. The prosecutor spent a

significant amount of time discussing the DNA evidence in his

closing argument. At the end of that discussion he spoke

briefly about the footwear impression testimony, arguing

essentially that, when viewed together, the DNA testimony and

the footwear impression testimony provided strong circumstantial
 19

evidence that the defendant was the person who killed the victim

because the victim's blood made its way on to the defendant's

right sandal at about the same time the defendant stepped in her

blood and left a footwear impression with his left sandal. The

powerful synergistic effect of the expert testimony was an

entirely reasonable and proper inference to draw.

Finally, the defendant has not shown that had trial counsel

moved for a hearing under Commonwealth v. Lanigan, supra, the

Commonwealth's expert probably would not have been allowed to

testify. Cf. Commonwealth v. Comita, 441 Mass. 86, 91 (2004)

("in order to prevail on an ineffective assistance of counsel

claim on the ground of failing to file a motion to suppress, the

defendant has to demonstrate a likelihood that the motion to

suppress would have been successful").

For the foregoing reasons, we conclude that counsel has not

been shown to be ineffective as to this claim.

e. There is no merit to the defendant's claim that counsel

was ineffective for arguing on manslaughter in his closing

argument, a theory that was inconsistent with the primary theory

at trial, which was that the defendant was not the killer. The

Commonwealth's case was very strong, and trial counsel carefully

avoided the admission of the defendant's jailhouse confession.

Trial counsel requested a manslaughter instruction based on

theories of heat of passion and reasonable provocation (the
 20

victim first scratched his face and then "kicked [him] out").

His argument to the jury was more in passing than it was

inconsistent with the primary trial strategy. He argued at the

very end of a closing argument that spanned approximately

twenty-three pages of the transcript, "You must return -- must

return a verdict of not guilty. And at the most, at most, the

government has proven manslaughter." The argument was hardly

the "abrupt switch" in strategy about which the defendant

complains. Rather, in the context of the entire closing

argument and the entire trial, it was the gentle planting of a

small seed. It served primarily as a quiet introduction to the

judge's instructions, and not a shift in strategy. The

requested instruction also gave the jury, and the defendant, an

additional option between guilty of murder and not guilty of

murder. Without an affidavit from the defendant or counsel as

to what, if anything, was discussed in this regard, we cannot

say that counsel's strategy was manifestly unreasonable. This

is especially true in light of the understated manner in which

counsel proceeded on this issue.

Finally, the judge's instruction on manslaughter was the

model instruction. Counsel's failure to object to the

instruction was not ineffective assistance of counsel. See

Commonwealth v. Tassinari, 466 Mass. 340, 356-357 (2013)

(manslaughter charge nearly verbatim to model instruction -- no
 21

error). Taken as a whole, we think the jury understood that a

verdict of guilty of murder in the first degree required proof

beyond a reasonable doubt of the absence of reasonable

provocation and the heat of passion, and that there was no error

as in Commonwealth v. Acevedo, 427 Mass. 714, 717 (1998).

For the foregoing reasons, we conclude that trial counsel

has not been shown to have been ineffective. We also discern no

error in the denial of an evidentiary hearing, and we conclude

that there was no substantial likelihood of a miscarriage of

justice in the judge's failure to make written findings.

4. Review under G. L. c. 278, § 33E. We have reviewed the

briefs and the entire record and conclude that there is no

reason for us to reduce the degree of guilt or order a new

trial.

Judgment affirmed.

Order denying motion for a
new trial affirmed.