Commonwealth v. Mazariego

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SJC-11719

COMMONWEALTH vs. EDWIN MAZARIEGO.

Worcester. January 12, 2016. - March 31, 2016.

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

Homicide. Felony-Murder Rule. Rape. Constitutional Law,
Voluntariness of statement, Waiver of constitutional
rights. Evidence, Voluntariness of statement, Inflammatory
evidence, Prior misconduct. Practice, Criminal, Capital
case, Motion to suppress, Voluntariness of statement,
Argument by prosecutor, Postconviction relief, Duplicative
convictions.

Indictments found and returned in the Superior Court
Department on June 14, 2010.

A pretrial motion to suppress evidence was heard by James
R. Lemire, J., and the cases were tried before David
Ricciardone, J.

Kathleen M. McCarthy for the defendant.
Susan M. Oftring, Assistant District Attorney, for the
Commonwealth.

SPINA, J. The defendant was convicted of murder in the

first degree on a theory of felony-murder, based on the

predicate felony of aggravated rape. He also was convicted of
 2

aggravated rape, and he was sentenced to concurrent terms of

life in prison. On appeal, the defendant asserts error in (1)

the denial of his motion for a required finding of not guilty;

(2) the denial of his separate motions to suppress two

statements he made to police; (3) the admission in evidence of

emotional testimony from the victim's daughter; (4) the

admission of evidence of the defendant's prior bad acts; (5)

improper closing argument by the prosecutor; and (6) the denial

of his postconviction motion to reduce the verdicts to rape and

felony-murder in the second degree. We affirm the convictions

of murder in the first degree and order dismissal of the

aggravated rape conviction as duplicative. We decline to

exercise our power under G. L. c. 278, § 33E, to reduce the

degree of guilt or order a new trial.

1. Background. The jury could have found the following

facts. We reserve other details for discussion of particular

issues.

Walter Martinez lived with his father, Rafael Martinez, on

Benefit Street in Worcester in August, 2006. Rafael owned the

house. He rented one room to Julio Mancias, Walter's cousin,

and another room to the defendant, Mancias's friend. On August

18, 2006, at about 10:20 P.M., Walter saw Mancias and the

defendant talking to the victim in the hallway of their home.

At about 11 P.M., Rafael was driving home and saw Mancias with
 3

two other people, one a woman, standing at the corner of Benefit

and Beacon streets. About two or three hours later, Rafael

heard a knock at a window. It was Mancias and the defendant.

They asked Rafael to let them in. When Rafael opened the door

they ran into the house and went directly to Mancias's room.

They appeared agitated and closed the door behind them. The

next morning, the victim's body was discovered by police near

train tracks in the vicinity of Benefit Street. She was naked

below the waist, her legs were spread apart, and her blood-

soaked shirt and sweater were pulled up. Her face was bloody.

Three bloody rocks ranging in weight from 11.17 pounds to 12.82

pounds were recovered near her body. A condom also was found

near her body.

About one month later, the defendant invited Walter to his

room for a beer. The defendant told him that he and Mancias had

been with a woman and that they had killed her in the basement

of the Benefit Street house. The defendant said Mancias

actually killed her by repeatedly hitting her on the back of her

head until she "dropped dead." He said they moved her body from

the basement of the house to some nearby train tracks. Walter

later confronted Mancias with what the defendant had told him.

Mancias admitted that he had killed the woman, and told Walter

that the victim was a prostitute and there had been a problem

over money. An individual unconnected to those mentioned above
 4

initially was charged with the victim's murder, but

deoxyribonucleic acid (DNA) testing excluded him as the

perpetrator. The case remained unsolved for nearly four years.

In an unrelated case, a group of men fired shots at Walter,

Mancias, and the defendant in 2007. Mancias was killed, Walter

was paralyzed, and the defendant escaped unharmed. During a

pretrial meeting in that case in February, 2010, Walter told the

prosecutor and a detective about his conversations with the

defendant and Mancias in 2006. As a result, a Spanish-speaking

detective interviewed the defendant on April 29, 2010, after

first advising him of the Miranda warnings. The defendant said

he understood his rights and agreed to speak to the detective.

The detective showed the defendant a photograph of the victim.

The defendant said she did not look familiar.

A second interview took place on May 17, 2010, preceded by

the Miranda warnings. The defendant said he understood his

rights and agreed to speak to the detective. He admitted that

he had lied on April 29 when he said he did not recognize the

victim. The defendant said she was not killed in the basement,

but at the location where she was found. He first said that he

saw Mancias with the victim at about 1 A.M. on the night she was

killed, and did not see him again that night until about 3 A.M.

At that time Mancias told him that he wanted to have sex with

the victim, but he could not because it was too cold and the
 5

victim did not want to have sex. Later in that conversation,

Mancias told the defendant that he had killed the victim because

she would not have sex with him. According to the defendant,

Mancias also said that he had killed her with some rocks. The

defendant denied being present when the victim was killed, and

he denied having sexual relations with her.

After further questioning on May 17, the defendant admitted

that he was with Mancias and the victim. He said that he went

with the victim first, that they both had removed their pants,

that he had positioned himself on top of her, and she insisted

on being paid. Because he had no money, he then hugged her, put

on his pants, and went over to Mancias. He said he told Mancias

that the victim did not want to have sex because he had no

money. The defendant denied having sexual relations with the

victim. He explained that sexual "relations" are when one

"finish[es]," and he did not "finish." Mancias told him to act

as a lookout in case the police came. The defendant said that

he went behind some bushes while Mancias took his turn. He

heard screams and he heard the hits. He said that he did not

see Mancias hitting the victim, but later said that he did see

Mancias hitting her with rocks, at which point he fled.

A forensic pathologist's testimony supported findings that

the victim died from blunt trauma to the head and that she had

been manually strangled, possibly before the head trauma.
 6

Vertical drips of dried blood on her legs suggested that the

victim had been injured while she was standing. Examination of

her external genitalia revealed a dry and red chafing-type

abrasion to the inner folds of the labia of recent origin, that

is, between one day and seconds before death. The abrasions

were consistent with vaginal penetration. Neither sperm nor

seminal fluid was detected on swabbings from the victim's mouth,

vagina, and rectum. A vaginal swab tested positive for blood.

DNA test results supported findings that the victim's DNA

matched the major DNA profile in a mixture of biological

material on one of the rocks found at the scene, and that

Mancias was a potential contributor of the minor DNA profile in

the mixture. A mixture of biological material from the interior

of the condom was subjected to DNA testing. The defendant

matched the major DNA profile, and the victim was included as a

potential contributor of the minor DNA profile. Mancias was

excluded as a source of the DNA mixture from the interior of the

condom. A DNA mixture on the exterior surface of the condom was

tested. The victim matched the major DNA profile in the

mixture, and the defendant was included as a potential

contributor of the minor DNA profile.

2. Motion for required finding. The defendant contends

that the judge erred in three respects in denying his motion for

a required finding of not guilty. He argues that the evidence
 7

was insufficient as to the issues of (1) penetration and lack of

consent; (2) aggravating factors for aggravated rape; and (3)

whether the killing occurred during the commission of a rape or

aggravated rape for purposes of felony-murder. The decision to

grant or deny a motion for a required finding is a question of

law. In reviewing the sufficiency of the evidence we consider

the evidence in the light most favorable to the Commonwealth and

ask if any rational trier of fact could have concluded that the

Commonwealth met its burden of proof as to the essential

elements of the crime charged. See Commonwealth v. Latimore,

378 Mass. 671, 677 (1979). A fact finder may rely on common

experience to draw inferences. Id. at 678. Inferences need not

be necessary. Id. at 678-679. "It is enough that [they] be

reasonable and possible" (emphasis added; citation omitted).

Commonwealth v. Marquetty, 416 Mass. 445, 452 (1993).

a. Penetration and lack of consent. The Commonwealth must

prove some degree of penetration, Commonwealth v. King, 445

Mass. 217, 221-222 (2005), cert. denied, 546 U.S. 1216 (2006),

and it must prove that such penetration occurred by threat of

force and against the will of the victim, Commonwealth v.

Sherry, 386 Mass. 682, 687 (1982).

The defendant contends that no rational fact finder could

have found beyond a reasonable doubt that he penetrated the

victim for purposes of rape, and that it was against the will of
 8

the victim. He bases his argument on the following evidence:

he only hugged the victim because she would not allow him to

have intercourse unless he first paid her; the relatively recent

abrasions on the inner folds of the victim's external labia

could have been one day old and were consistent with several

possible causes other than penetration; testimony from the

Commonwealth's pathologist that science could not determine the

cause of the abrasions; the evidence that no seminal fluid or

sperm cells were detected on any of the swabbings of the victim;

and it could not be determined how the victim's DNA was

deposited on the condom found at the scene. The defendant has

distorted the Latimore analysis by casting the evidence in the

light most favorable to himself.

A jury could have found beyond a reasonable doubt that the

element of penetration had been established based on evidence

that the defendant's DNA matched the major DNA profile of the

biological material from the interior of the condom; that the

victim's DNA matched the major profile of the biological

material on the exterior surface of the condom; that in his

statements to Rosario the defendant lied about his involvement

and made incremental disclosures of his participation in the

incident; that the defendant admitted being on top of the victim

when they were both naked below the waist; that the abrasions to

the victim's external labia were consistent with forceful
 9

penetration; and that penetration could be inferred from the

defendant's statement that he did not have sexual relations with

the victim because he did not "finish," which a jury could infer

to mean that the defendant penetrated but did not experience

orgasm. Separately, these facts would not warrant a finding of

penetration, but together, they possess a synergy that supports

a finding of the element of penetration. See Phillips v. Chase,

201 Mass. 444, 448 (1909) ("When circumstantial evidence is

largely relied upon to establish an issue, it is inevitable that

many matters should be introduced which by themselves alone

would be immaterial, although in connection with other evidence

they may be helpful in discovering the truth").

Additionally, a jury could have found that where the

defendant acknowledged that the victim made it clear that she

did not want to have intercourse unless she were paid in advance

and that she had not been paid, the defendant had nonconsensual

sexual intercourse with the victim, and that he did so with

force. The judge properly denied the defendant's motion for a

required finding of not guilty to the extent that the

Commonwealth made out a prima facie case of rape.

b. Aggravated rape. The defendant next contends that

there was insufficient evidence to support a verdict of guilty

of the crime of aggravated rape. Aggravated rape is rape "[a]

committed with acts resulting in serious bodily injury, [b] or
 10

is committed by a joint enterprise, [c] or is committed during

the commission or attempted commission of" certain specified

offenses not relevant here. G. L. c. 265, § 22 (a). We are

concerned only with the first two alternatives, which are

intertwined in this case. A jury could have found the defendant

guilty on both alternatives based on the evidence that he and

Mancias both planned to have intercourse with the victim; that

they went to a location where the defendant previously had taken

prostitutes; that the defendant had no money to pay the victim;

that he did not ask Mancias to pay the victim; that neither of

them had money to pay the victim nor the intention to pay her

for sexual intercourse; that the defendant acted as a lookout

while Mancias hit the victim with heavy rocks; that the

defendant observed the killing; that after the victim collapsed

one or both men raised her bloody shirt and sweater to expose

her breasts and one or both men spread apart her legs; that they

fled together and arrived together at the Benefit Street house

where they rented rooms; and that the defendant told Walter that

"they" killed the victim.

A jury could infer the existence of a joint venture from

the circumstances, including engaging a prostitute for

intercourse without having any money or intention to pay; the

defendant positioning himself as a lookout during the beating,

see Commonwealth v. Hanwright, 466 Mass. 303, 313 (2013); the
 11

evidence that Mancias and the defendant fled together, see

Commonwealth v. Williams, 422 Mass. 111, 121 (1996); and from

the other circumstances. "The relevant question is whether the

evidence would permit a jury to find guilt, not whether the

evidence requires such a finding." Commonwealth v. Lydon, 413

Mass. 309, 312 (1992), quoting Commonwealth v. Brown, 401 Mass.

745, 747 (1988). A jury had sufficient evidence from which they

could conclude that the defendant raped the victim as part of a

joint venture based on the evidence that he was present at the

scene, with knowledge that either or both men intended to have

nonconsensual sexual intercourse with the victim, and that the

defendant was willing and available to help Mancias if

necessary, the elements of a joint venture. See Commonwealth v.

Zanetti, 454 Mass. 449, 455 (2009).

Moreover, a jury had ample basis to find that serious

bodily injury was inflicted on the victim by Mancias while the

defendant was acting as his lookout. The jury were not required

to believe the defendant's statement that he had disengaged from

the joint venture, but that he remained with Mancias and that

they left the scene together. The judge did not err in denying

the defendant's motion for a required finding of not guilty as

to the crime of aggravated rape. See Commonwealth v. Lynch, 428

Mass. 617, 622 (1999).
 12

c. Felony-murder. Last, the defendant contends that the

evidence was insufficient to establish beyond a reasonable doubt

that the killing occurred during the course of the predicate

felony, here, aggravated rape. "[F]or purposes of felony-

murder, the homicide and predicate felony 'need only to have

occurred as part of one continuous transaction'; and [the]

connection is sufficient 'as long as the [predicate felony] and

the homicide[] took place at substantially the same time and

place.'" Commonwealth v. Gunter, 459 Mass. 480, 488, cert.

denied, 132 S. Ct. 218 (2011), quoting Commonwealth v. Ortiz,

408 Mass. 463, 466 (1990). Where the jury could have found that

the defendant and Mancias had engaged in a joint venture to rape

the victim, that the defendant acted as a lookout for Mancias,

and that contrary to the defendant's assertion, he had not

disengaged from the joint venture, Mancias's killing of the

victim constituted felony-murder for which the defendant could

be convicted under a theory of joint venture. There was no

error in the denial of the defendant's motion for a required

finding of not guilty.

3. Suppression issues. The defendant argues that the two

statements he made on April 29, 2010, and the one on May 17,

2010, should have been suppressed on grounds that he did not

understand his Miranda rights, that he did not properly waive

his Miranda rights, and that the statements were not made
 13

voluntarily. On April 29 the defendant was transported from the

Worcester County House of Correction, where he was being held on

an unrelated matter, to the Worcester police station. The first

statement on April 29 consisted of a pretrial interview of the

defendant with respect to the shooting case in which he was an

apparent target. The second interview concerned the instant

matter. On May 17 the defendant again was transported from the

Worcester County House of Correction to the Worcester police

station. That interview concerned the instant case. The three

interviews were video recorded and were conducted in Spanish, as

the defendant speaks little English.1 Detective Daniel Rosario

of the Worcester police department, who speaks Spanish,

conducted all the interviews. Transcripts of the interviews

were translated into English, and no question has been raised as

to the accuracy of either the transcripts or the translations.

The first interview on April 29 began at approximately 7:20 P.M.

and ended at approximately 8:45 P.M. The second interview on

April 29 lasted approximately one hour and ten minutes. There

was a break of about twenty-five minutes between the two

interviews on April 29. The May 17 interview lasted

approximately two hours and eleven minutes.

1
Because the interviews were conducted in Spanish, the
video recordings were not played to the jury. Instead, portions
of English translations of the transcriptions of the audio
portion of the recordings were read to the jury.
 14

The defendant filed a pretrial motion to suppress these

statements. His motion alleged that all three statements should

be suppressed because they "were not preceded by a knowing and

intelligent waiver of Miranda rights," and because they "were

involuntary." The statement of most concern to the defendant

was the one that he made on May 17 because it contained

admissions relevant to this case. The defendant's theory for

suppression had two components, and it was complex. First, at

the beginning of the initial interview on April 29, during the

Miranda advisement, the defendant asked, "[O]n whose side is the

attorney?" He argued in his supporting memorandum of law that

the question demonstrated the defendant's ignorance of the role

of an attorney for purposes of Miranda rights, and because his

question was never answered on the record, his waiver of Miranda

rights could not have been knowing and intelligent as to any of

the statements, all of which were preceded by a Miranda

advisement that he never understood.2 Second, the interrogation

2
The defendant challenges on appeal the trial judge's
refusal to consider this issue, which the defendant renewed in a
motion in limine filed on the first day of trial. The trial
judge determined that he was bound by the decision of the motion
judge, who considered the same issue. Contrary to the
defendant's assertions, he raised precisely the same issue in
his memorandum of law in support of the motion to suppress. The
trial judge's ruling was correct. See Commonwealth v. Haskell,
438 Mass. 790, 792-793 (2003); Commonwealth v. Marmolejos, 35
Mass. App. Ct. 1, 3 (1993). We will treat the issue as having
been decided by the motion judge, and the matter will receive
full appellate review.
 15

techniques employed during the second interview on April 29 were

so coercive as to render any statement he made at that time

involuntary, and their effect on the defendant did not dissipate

with time but instead continued to resonate and carried over to

May 17, rendering the May 17 Miranda waiver and the May 17

statement, as well as the second April 29 statement,

involuntary. This argument also was set forth in the

defendant's memorandum of law in support of his motion to

suppress.

The motion judge conducted an evidentiary hearing on the

motion to suppress at which the defendant testified about the

effects that Detective Rosario's interrogation of April 29 had

on him during the May 17 interview. After reviewing the video

recordings of the three interviews and the translations of the

transcripts, the motion judge concluded that the defendant

"knowingly, voluntarily and intelligently waive[d] his Miranda

rights before being interrogated on each of the three

occasions."3 The motion judge also found the defendant's

testimony about the coercive effects of the second April 29

interview to be "not credible," and he concluded that all three

statements given by the defendant were voluntary.

3
The parties do not dispute the judge's conclusion that all
three interviews were custodial interrogations.
 16

a. Miranda issues. The path of the litigation of the

Miranda issues took an unwieldy turn, to which we alluded in

note 2, supra. On the first day of trial, after learning that

the prosecutor intended to offer portions of the defendant's

second statement from April 29 (there were no admissions, but

the prosecutor wanted the jury to hear what details of the

investigation had been shared with the defendant), the defendant

filed a motion in limine seeking to exclude both statements made

on April 29, essentially tracking the theories that had been

made in the motion to suppress. In his supporting memorandum of

law, and for the first time, he claimed that he invoked his

right to silence at the beginning of the second interview on

April 29. Based on discussions with counsel, the trial judge

assumed that the issue had been decided by the motion judge.

Unfortunately, no one alerted the trial judge to the arguments

made by the defendant in his memorandum of law in support of the

motion to suppress. Had that been done, the judge would have

seen that the claim of invocation of the right to silence was

new, and that he might have had discretion to consider it. See

Mass. R. Crim. P. 13 (a) (5), as appearing in 442 Mass. 1516

(2004); Commonwealth v. Haskell, 438 Mass. 790, 792-793 (2003);

Commonwealth v. Marmolejos, 35 Mass. App. Ct. 1, 3 (1993).

Because resolution of this question can be made by reviewing the

video recordings of the interviews and by reviewing the
 17

translations of the transcripts of the interviews, we are in the

same position as was the trial judge, and we make our own

independent judgment about the facts and the legal analysis.

See Commonwealth v. Clarke, 461 Mass. 336, 340-341 (2012).

i. Knowing waiver. The defendant first contends that the

Commonwealth has not shown that he knowingly waived his Miranda

rights. During the Miranda advisement preceding the first

interview on April 29 the defendant asked in response to the

Miranda warning regarding the appointment of an attorney, "[O]n

whose side is the attorney?" The defendant contends that this

question, which never was answered, demonstrates that he did not

understand the Miranda warning about the right to an attorney,

and therefore he could not have waived his Miranda rights

knowingly and voluntarily. He further contends that this lack

of understanding about the role of an attorney at the first

advisement on April 29 remained unexplained and carried forward

as to all other advisements, namely, the second advisement on

April 29 and the advisement on May 17.

Although the defendant claims that he did not understand

the role of an attorney in the Miranda context, and that the

question he asked went unanswered, the record belies his

assertions. The record reflects that when Detective Rosario

started to explain the Miranda warnings in response to the

defendant's question about the role of an attorney, the
 18

defendant interrupted him. Rosario had begun his explanation by

saying, "the most important thing is that you have the right to

remain silent. In other words, you don't have to talk to me if

you don't want to. Do you understand?" The defendant

immediately interjected, "No, but if it's about making a

statement, I'll give you a statement, because it's my family."

Rosario said: "But, do you want me to explain or do you

understand me all right?" The defendant replied: "No, I

understood you." Nevertheless, Rosario continued: "You can

give up the right I just read to you, to an attorney and your

right to remain silent, and you can answer any question or make

any statement that you want to, do you understand?" The

defendant replied, "Yes." Rosario continued: "If you decide to

answer the questions, again, you can stop at any time to consult

with an attorney. Do you understand more or less?" The

defendant indicated that he understood and agreed to speak to

Rosario. We are satisfied that, when Rosario explained that the

defendant could stop questioning at any time to consult with an

attorney, his explanation was adequate, the defendant accepted

the explanation, and the defendant indicated that he understood

his rights.

We have viewed the video recordings and considered the

translations of what was said during each of the three

interviews. We conclude that, in the totality of the
 19

circumstances, the defendant received, understood, and then

knowingly and intelligently waived his Miranda rights before

each interview. See Commonwealth v. Edwards, 420 Mass. 666, 670

(1995).

ii. Invocation of right to silence. The defendant next

argues that he exercised his right to remain silent at the

beginning of the second interview on April 29. This issue was

raised for the first time in a motion in limine filed on the

first day of trial, as discussed in note 2, supra. At the end

of the first interview on April 29 the defendant asked, "You're

still going to continue interviewing, aren't you?" After a

short break and at the beginning of the second interview on

April 29 Detective Rosario asked the defendant what he meant by

his question at the end of the previous interview. The

defendant mentioned being taken back to the house of correction.

It appears that Rosario thought that the defendant meant he

wanted to keep talking in order to delay being sent back. He

asked the defendant if he wanted to continue talking. The

record indicates the defendant laughed and said, "No, no, no."

The context reveals that when he laughed and said, "No, no, no,"

the defendant was signaling Rosario's misunderstanding. Indeed,

in the very next exchange, the defendant said, "Yes, it is

fine," in response to Rosario's request to begin the interview
 20

by advising the defendant of the Miranda warnings.4 The

defendant did not exercise his right to remain silent.

b. Voluntariness. The defendant next argues that his

May 17 statement was the product of coercive police

interrogation techniques employed during the second April 29

interview. We begin with the second April 29 interview.

Contrary to the defendant's claim, Rosario did not misrepresent

to the defendant that if he did not tell his side of the story

at that time, he would not later be able to tell it to a jury.

Contrast Commonwealth v. Novo, 442 Mass. 262, 268-269 (2004).

Rosario essentially told the defendant that it was his

opportunity to "explain it to me" and that it was important to

Rosario that the defendant be truthful at that time.

Rosario engaged in some deception, telling the defendant

that because their conversation was being recorded, he (Rosario)

could not lie to the defendant. That is not a correct statement

of law. The use of trickery or deceitful tactics, while

disfavored, does not necessarily compel suppression, but is a

factor to be considered when deciding if, in the totality of the

4
We note that the trial judge determined, essentially on
grounds of relevance and fairness, that the only portion of the
second interview on April 29 that could be admitted in evidence
was the defendant's statement, when shown a photograph of the
victim, that he had never before seen her. In his May 17
statement the defendant acknowledged he had not been truthful on
April 29 when he said he had never seen the victim before.
 21

circumstances, a confession is voluntary. See Commonwealth v.

DiGiambattista, 442 Mass. 423, 432-433 (2004).

Rosario also employed the technique of minimization,

suggesting that the defendant's mere presence did not mean that

he killed someone. This was a correct statement of law, but it

could be misleading. Significantly, Rosario made no assurance

of leniency, so we consider the use of this technique to be a

factor that should be considered when determining whether, in

the totality of the circumstances, a confession is voluntary.

Id. at 437-439.

The defendant also cites Rosario's inquiry about whether

the defendant was a religious person. When the defendant said

he was, Rosario told him, "You can hide from us, but you cannot

hide from God." However, it was not Rosario who first broached

the subject of an Almighty observer. In response to Rosario's

question whether the defendant helped Julio Mancias move the

victim's body from the basement of the house to the railroad

tracks, the defendant said he did not, adding, "God is up there.

I am not lying." Rosario continued with the theme of divine

guidance, telling the defendant that he was being offered a

tremendous opportunity to be truthful now, otherwise he would

"have a very long time to ask yourself: why is it that when God

gave me the opportunity to tell the truth I just remained

quiet?" And later, "[twenty-eight] years old. Are you prepared
 22

to spend the rest of your life in jail?" Unmoved, the defendant

replied, "Whatever God wants." We consider this aspect of the

interrogation to be a factor in the assessment of the question

of voluntariness. As with other factors, it alone is not

determinative.

Detective Rosario also used the ploy of being the

defendant's "brother," specifically, sharing a common bond of

Hispanic ancestry and culture. The defendant did not take the

bait.

Although some of Rosario's interrogation techniques warrant

our concern, none of them, either individually or in

combination, appears to have overborne the defendant's will.

See Commonwealth v. Tremblay, 460 Mass. 199, 206-207 (2011).

Indeed, as the motion judge found, "the defendant held his

ground and would not concede when [Rosario] tried to suggest

that he played more of a role in [the victim's] death." We have

viewed the video recording of the second April 29 interview, and

we agree with the motion judge. The defendant laughed or

chuckled at Rosario sixteen times. He yawned once. The

defendant held fast to his denials about involvement in a

killing in the basement at Benefit Street. Rosario had

information that the killing occurred there, but in fact it did

not occur there, and the defendant knew as much. The defendant

had the superior position as to the details of the killing, and
 23

the calm he maintained during the interview, often with his arms

crossed with confidence, is entirely understandable.

Significantly, Rosario also maintained his composure throughout

the interview, never raising his voice, never taking an

aggressive attitude, and engaging the defendant in a

conversational tone at all times. Rosario did not overbear the

will of the defendant during the second interview on April 29.

Finally, we turn to the question whether the alleged

coercive nature of the second interview on April 29 smoldered in

the defendant's mind such that it adversely affected his waiver

of Miranda rights on May 17, and whether it rendered the

defendant's May 17 statement involuntary. The motion judge

specifically addressed these issues in his decision on the

defendant's pretrial motion to suppress evidence. Not only did

the motion judge view the video recordings of all the interviews

and the translations of transcriptions of all the interviews,

but the defendant testified at the hearing. Specifically, he

testified about how Rosario's statements made him feel. The

judge found the defendant's testimony "not credible." The judge

found the May 17 interview to be "an attempt [by the defendant]

to minimize his role in the crimes and was the product of his

rational intellect. He had the opportunity to reflect on the

facts he had received from the police and made a decision to try

to address these facts by providing information that tended to
 24

diminish any culpability on his part." We defer to the judge's

findings of credibility and fact based on testimony that he

witnessed, and that we did not. See Commonwealth v. Hoose, 467

Mass. 395, 399 (2014). We have conducted our own "independent

review of the judge's application of constitutional principles

to the facts found," id. at 400, including a review of all the

video recordings and the translations of those recordings, and

we conclude that in the totality of the circumstances, the

defendant made a knowing and voluntary waiver of his Miranda

rights on May 17, and that his statement of May 17, which

included a piecemeal unfolding of his involvement in the crime,

was given voluntarily. There was no error in the denial of the

defendant's motion to suppress.

4. Testimony from victim's daughter. The defendant

objected to testimony from the victim's daughter, who described

their immediate family and briefly described the date and

circumstances when she last saw the victim and how she learned

of her death. The defendant argues this was irrelevant and an

improper appeal to sympathy. The testimony comprised but five

pages of the transcript. The judge gave an immediate limiting

instruction, telling the jury that the testimony was "not an

appeal to sympathy or emotions," but was offered "to give you

some background on the person, the decedent." The prosecutor

did not refer to the testimony in closing. Some limited
 25

biographical detail may be given to humanize a victim, and the

testimony here fell within permissible limits, especially when

its use could not be used to engender sympathy or an emotional

response to the evidence. See Commonwealth v. Holliday, 450

Mass. 794, 816, cert. denied, 555 U.S. 947 (2008). There was no

error.

5. Evidence of prior bad acts. The judge admitted

evidence of the defendant's past history of bringing prostitutes

to the area of Benefit Street on the issue of motive, intent,

state of mind of the defendant, or lack of mistake on August 18-

19, 2006. The defendant timely objected, and now argues that

the evidence was irrelevant and prejudicial evidence of bad

character and propensity. Evidence of prior bad acts may not be

admitted to show bad character or a propensity to commit crime.

"[S]uch evidence may be admitted, if relevant, to show a common

scheme or course of conduct, a pattern of operation, absence of

accident or mistake, intent or motive." Commonwealth v.

Barrett, 418 Mass. 788, 793-794 (1994). The evidence showed

that on three prior occasions the defendant had had sexual

relations with three prostitutes in the vicinity where the

victim was killed. The judge immediately gave a limiting

instruction tracking the language of Barrett. The evidence was

relevant to show the defendant's intent, similarities in the

location where he took prostitutes, and absence of mistake,
 26

namely, that the defendant knew that he brought no money to a

transaction that he must have known would require payment of

money, and that having no money was probative of the defendant's

intent to have sexual intercourse with a prostitute without

paying the requisite fee. It also was relevant to show that the

defendant had more than passive involvement in the planning of

the incident, where he was familiar with the particular location

of the crime and his past use of that location for engaging

prostitutes. There was no error.

6. Prosecutor's closing. The defendant asserts that the

prosecutor improperly misstated evidence, referred to facts not

in evidence, and improperly appealed to juror sympathy. See

Commonwealth v. Kozec, 399 Mass. 514, 516-517 (1987).

The prosecutor referred to the abrasion on the victim's

labia as "[f]resh." The defendant asserts that this was a

misrepresentation of the evidence. The prosecutor did not

misrepresent the evidence. The Commonwealth's pathologist

testified that these abrasions were recent, and she gave a time

range for their cause as being from a day before death to hours,

minutes, or even seconds before death. The pathologist's

opinion was expressed in isolation of the other evidence in the

case. The prosecutor's selection of a point in time within the

range expressed by the pathologist, as illuminated by other

evidence in the case, was fair, reasonable, and proper. A
 27

prosecutor is permitted to make arguments of this nature to

assist the jury in analyzing the evidence and to suggest

conclusions they should draw from the evidence. See

Commonwealth v. Johnson, 429 Mass. 745, 750 (1999).

The prosecutor argued initially that the fresh abrasions to

the labia were "in the area of [the victim's] vagina," and that

these abrasions, "coupled with the blood found inside her

vagina, tells us the defendant didn't hug [the victim]. He

raped her." This argument was properly grounded in the

evidence. The prosecutor later misspoke, saying, "The injuries

to her vagina and the blood inside of it tell us that." The

defendant objected at the conclusion of the prosecutor's

argument. The defendant contends this was prejudicial error

requiring reversal. The judge acknowledged that the injury to

the vagina was a "misstatement," but not one that "amount[ed] to

impropriety." The judge immediately instructed the jury

generally that if either lawyer said anything that did not

concur with the jury's recollection of the evidence, the jury's

memory controlled. Although the prosecutor's reference to an

injury to the victim's vagina, rather than injury to the labia

and blood found in the victim's vagina as he previously argued

properly, was error, we think that it was not prejudicial. The

element of penetration does not require proof of vaginal

penetration, but may be met by evidence of a touching of the
 28

labia. See Commonwealth v. Donlan, 436 Mass. 329, 336 (2002);

Commonwealth v. Gichel, 48 Mass. App. Ct. 206, 213 (1999).

Here, the Commonwealth's pathologist testified that the injury

to the labia was consistent with penetration. The manner in

which the judge addressed the issue was adequate.

The defendant next argues that the prosecutor impermissibly

appealed to juror sympathy when he argued that the defendant and

Mancias fled together, "leaving [the victim's] body on the side

of those tracks, as if she weren't even a human being, as if she

were the litter we saw walking around [during the] view."

Defense counsel objected at the end of the prosecutor's argument

and asked that the "litter" comment be struck and the jury

instructed. The judge overruled the objection, stating that the

prosecutor did not cross the line. We doubt that the

prosecutor's needless comment had the effect of sweeping the

jurors beyond a fair and calm consideration of the evidence, see

Commonwealth v. Smith, 387 Mass. 900, 905 (1983), and we

continue to credit jurors with that "certain measure of . . .

sophistication in sorting out excessive claims," Commonwealth v.

Kozec, 399 Mass. at 517. Regrettably, we cannot say the same

for those prosecutors who seem bent on interjecting low grade

drama into their closing arguments. Here, the jury did not

quite feel the prosecutor's passion, given that they found the

defendant not guilty of murder committed with extreme atrocity
 29

or cruelty. This single reference was not so inflammatory as to

require a new trial. Commonwealth v. Judge, 420 Mass. 433, 452

(1999).

Finally, the defendant argues that the prosecutor argued

facts not in evidence when he said, "[The victim] died so the

defendants could cover up the rape they had just committed and

what they had done. And they ran up the hill afterwards

together . . . ." The defendant contends there was no evidence

to support this theory. There was no objection. There was

evidence to support a finding of aggravated rape by joint

venture, that the defendant acted as lookout for Mancias, and

evidence from which the jury could have found that they fled

together. The prosecutor was entitled to marshal the evidence

"in favor of his client." Commonwealth v. Johnson, 374 Mass.

453, 459 (1978), S.C., 409 Mass. 405 (1991). The argument,

although not one that flows inevitably from the evidence, asked

the jury to draw an inference that was "reasonable and possible"

(citation omitted). Commonwealth v. Marquetty, 416 Mass. at

452. Moreover, the absence of an objection to this statement

from vigilant defense counsel is some indication that the

comment did not land a foul blow that was unfairly prejudicial.

See Commonwealth v. Toro, 395 Mass. 354, 360 (1985). We

conclude that the argument did not create a substantial
 30

likelihood of a miscarriage of justice. Commonwealth v. Wright,

411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014).

7. Motion to reduce verdicts. The defendant moved

postverdict, pursuant to Mass. R. Crim. P. 25 (b) (2), 378 Mass.

896 (1979), to order entry of findings of not guilty or,

alternatively, to order entry of verdicts on lesser included

offenses. The motion was denied, and the defendant appeals from

the denial of his motion. A judge's decision to exercise the

broad powers conferred by rule 25 (b) (2)5 is reviewed for abuse

of discretion or error of law. Commonwealth v. Lyons, 444 Mass.

289, 291 (2005). We do not substitute our judgment for that of

the trial judge. Other than arguing the facts of the case in

the light most favorable to himself, the defendant has not shown

that the judge abused his discretion.

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

entire record, the briefs, and heard oral argument, and conclude

that there is no reason to reduce the degree of guilt or order a

new trial. However, the conviction on the indictment alleging

aggravated rape is duplicative of the conviction of felony-

murder and must be dismissed. See Commonwealth v. Lopes, 455

Mass. 147, 148 (2009).

5
We have likened the broad powers of a trial court judge
under Mass. R. Crim. P. 25 (b) (2), 378 Mass. 896 (1979), to our
powers under G. L. c. 278, § 33E. See Commonwealth v. Keough,
385 Mass. 314, 319 (1982), quoting Commonwealth v. Goulden, 383
Mass. 543, 555 (1981).
 31

9. Conclusion. The judgment of conviction of murder in

the first degree is affirmed, as is the denial of the

postverdict motion under rule 25 (b) (2). The matter is

remanded for entry of an order dismissing as duplicative the

conviction on the indictment alleging aggravated rape.

So ordered.