Commonwealth v. Salazar
Commonwealth v. Salazar
Opinion
*785 **106 On the night of January 31, 2005, members of the Boston fire department in the Dorchester section of Boston responded to the sound of banging on their fire house door. Outside the station was the defendant, Manolo Salazar, covered in blood. After examining the defendant, firefighters found only a minor cut on his right hand. Police investigation revealed the source of the rest of the blood on the defendant's body: Carlos Cruz, the defendant's roommate, whom police found dead in their shared apartment.
After a jury trial, the defendant was convicted of murder in the first degree on the theory of deliberate premeditation. 1 He raises several arguments on appeal: (1) the judge erred in denying his motions for a required finding of not guilty on the murder charge because the evidence was insufficient to establish deliberate premeditation; (2) he should be afforded a new trial because trial counsel was ineffective in failing to introduce evidence in support of a defense based on voluntary intoxication; and (3) improper statements in the prosecutor's closing argument created a substantial likelihood of a miscarriage of justice. 2 The defendant also asks us to exercise our authority under G. L. c. 278, § 33E, to either reduce **107 his conviction to murder in the second degree or order a new trial.
Having thoroughly reviewed the defendant's asserted errors and the record as a whole, we discern no reversible error. However, given the unique circumstances of this case, we exercise our authority under G. L. c. 278, § 33E, to reduce the defendant's verdict to murder in the second degree.
1. Background . a. Trial . Because the defendant challenges the sufficiency of the evidence, we recite the facts that the jury could have found in the light most favorable *786 to the Commonwealth and reserve additional facts for later discussion.
At approximately 8:40 P.M. on January 31, 2005, members of the Boston fire department heard banging on the door of a station in Dorchester. They found the defendant at the door. He fell down. His clothes, including the socks on his shoeless feet, were covered in blood. The lone injury firefighters discovered was a minor laceration between the defendant's right thumb and forefinger that was not bleeding heavily enough to account for all of the blood on his clothes. After an ambulance arrived, the defendant became combative and was handcuffed to a backboard by paramedics before being transported to a Boston hospital.
Initially, the defendant told police that his last name began with a "Z" instead of an "S" and provided them with an inaccurate home address. Subsequent investigation led police to the defendant's home in Dorchester, a three-unit apartment building. On entry into the defendant's third-floor apartment, police discovered the victim lying dead on the floor between a hallway and a bedroom. A Boston Police Department detective observed a large pool of blood below the victim's body. Inside that pool of blood was a kitchen knife with a wooden handle and a serrated edge, which was "drastically" bent.
The Commonwealth's chief medical examiner at the time of trial testified to the victim's autopsy report, which had been prepared by another medical examiner. He detailed the victim's injuries, noting that the "most lethal" wound was a cut beginning at the victim's left ear and continuing to his neck. He described the wound as a deep stab wound that injured both the victim's **108 carotid artery and his jugular vein, causing him to bleed to death. He described eleven additional injuries; five were abrasions and six were clearly caused by a sharp object. The additional sharp object injuries included three stab wounds (one to the left arm, one to the left shoulder, and one near the left armpit that was four inches deep) and three, more shallow, incised wounds (one to the outside of the left arm, one to the left side of the chest, and one that extended from the victim's left index finger to his ring finger). The medical examiner described the injury across the victim's fingers as consistent with the victim "trying to deflect" the knife with that hand. He further opined that the victim's wounds were consistent with the knife that was found underneath him, and that the cut on the defendant's hand was consistent with the murder weapon slipping in the defendant's hand.
Police viewed reddish-brown stains throughout the apartment that created a trail from the area of the victim's body down the hallway, through the kitchen, onto the back porch, over the third-floor railing and down to the railings on the second and first floors, through the backyard, and over a chain-link fence. That trail then led through a vacant lot and onto nearby streets, eventually leading to the fire station. Deoxyribonucleic acid testing identified the victim's blood as a possible source of many of these "reddish-brown" stains, including those on the defendant's pants and socks, one on the porch railing on the third floor, and one on a snow pile in the vacant lot.
The defendant testified in his own defense and denied killing the victim. He testified that the victim was "almost like my brother" and that the two had spent the day of January 31 together in the apartment cooking and drinking beer. Although the defendant did not recall how many beers he consumed, his testimony suggested that he was drinking beer from at least 11:30 A.M. until approximately 4 P.M. , at which point he fell asleep on the *787 couch. The defendant testified that he was awakened by loud voices arguing in the apartment and saw two strange men inside the apartment arguing with the victim. One of the men had a knife and began stabbing the victim, causing the defendant to intervene. The defendant said that he was then beaten by the two men and fled the apartment, going directly to the fire station to find help.
The judge denied the defendant's motions for a required finding of not guilty. At the charge conference, trial counsel requested that the judge instruct the jury on intoxication as relevant to both **109 intent and deliberate premeditation. The judge so instructed the jury, but noted to counsel that "there is a paucity of evidence on [intoxication] and there's certainly no scientific evidence that I've seen."
b. Motion for new trial . The defendant filed a motion for a new trial after his conviction, asserting ineffective assistance of counsel based on trial counsel's failure to introduce medical records showing his levels of intoxication. 3 The jury had heard evidence suggesting that the defendant was intoxicated on the night of the murder, including testimony from a woman who had translated for the defendant at the hospital. The woman testified that the defendant's speech "was kind of sluggish," his breath smelled of alcohol, and his eyes were bloodshot. Trial counsel did not mention intoxication in her opening statement, and she referenced the evidence of the defendant's intoxication in her closing argument only in an attempt to explain disparities in the defendant's recollection of events.
Not before the jury, however, were the defendant's medical records, which were discussed before trial at an evidentiary hearing on the defendant's motion to suppress. His breathalyzer results indicated either a 0.298 or a 0.289 blood alcohol content (BAC), his blood alcohol readings were 0.226 and 0.288, and he had a serum alcohol level of 307. The defendant was diagnosed with alcohol intoxication, and a medical technician testified at the suppression hearing that the defendant's breathalyzer results indicated a very high level of intoxication. 4
Trial counsel submitted an affidavit stating that her failure to introduce medical records indicating the defendant's high level of intoxication was not a strategic decision, but rather an oversight on her part. In denying the defendant's motion without an evidentiary hearing, the motion judge implicitly discredited trial counsel's affidavit and determined that the record indicated "that counsel consciously chose not to offer the medical records." Emphasizing how a vigorous intoxication defense would have undermined the defendant's testimony that he was innocent, the motion judge found that trial counsel made a tactical decision to **110 focus on a third-party culprit theory rather than introduce significant evidence of intoxication.
The defendant filed a motion for reconsideration, which was allowed, and an evidentiary hearing on the motion for a new trial followed. Trial counsel testified at the hearing. In an amended decision, the motion judge noted that the defendant's medical records showed "very significant intoxication" and credited trial counsel's *788 testimony that she had intended to present and rely on those medical records as part of her intoxication strategy. He further concluded that trial counsel never intended to call as a witness at trial the medical technician who had administered the defendant's breathalyzer test at the hospital and who had testified at the suppression hearing that the defendant's BAC was "very high."
The judge issued an amended decision on the defendant's motion for a new trial. The judge concluded that trial counsel pursued a dual-defense strategy and had intended to introduce the medical records as a part of a voluntary intoxication defense. The judge held that, because trial counsel inadvertently failed to introduce those records because she believed that they were in evidence, trial counsel's performance fell measurably below that of an ordinary fallible lawyer.
5
See
Commonwealth
v.
Saferian
,
2.
Discussion
. a.
Sufficiency of the evidence
. The defendant maintains that the evidence presented at trial was insufficient to establish deliberate premeditation, and that the judge's denial of his motions for a required finding of not guilty was therefore error. We review the denial of a motion for a required finding of not guilty to determine "whether the evidence offered by the Commonwealth, together with reasonable inferences therefrom,
**111
when viewed in its light most favorable to the Commonwealth, was sufficient to persuade a rational jury beyond a reasonable doubt of the existence of every element of the crime charged."
Commonwealth
v.
Whitaker
,
To prove murder in the first degree on the theory of deliberate premeditation, the Commonwealth must prove "not only that the defendant intended to kill, but that the defendant decided to kill after a period of reflection."
Whitaker
,
We have recognized as proper considerations in a deliberate premeditation analysis the number and severity of the injuries, including defensive wounds, the procuring of a murder weapon in one room and carrying it to use in another, and the location of a victim's wounds. See
Whitaker
,
b.
Ineffective assistance of counsel
. The defendant maintains that he was deprived of effective assistance of counsel at trial because his counsel failed to introduce the defendant's medical records indicating his high level of intoxication on the night of the murder. Because the defendant was convicted of murder in the first degree, we review the claim under the more favorable standard articulated in G. L. c. 278, § 33E, under which we must determine whether there was a substantial likelihood of a miscarriage of justice.
Commonwealth
v.
Alicea
,
*790
We agree with the motion judge that trial counsel's oversight in failing to introduce the defendant's medical records was error. We
**113
differ from the motion judge's ruling that it was a reasonable strategic decision by trial counsel to not supplement those records with expert testimony regarding the relationship between the BAC reading and intoxication. See
Commonwealth
v.
Colturi
,
We recognize that trial counsel was faced with a difficult strategic predicament at trial. The defendant, as is his constitutional right, testified in his own defense. See
Commonwealth
v.
Brown
,
Nevertheless, the jury were presented with evidence that allowed them to consider the question of intoxication. Most notably, the defendant testified that he had spent at least four and one-half hours drinking beer with the victim on the day of the murder, although he did not know how many beers he had consumed. The woman who interacted with the defendant at the hospital noted that his breath smelled of alcohol, his eyes were bloodshot, and his speech was sluggish. Although there is no dispute that the defendant drank and showed signs of intoxication, there also was ample evidence before the jury to show that the defendant was not intoxicated to the point of debilitation. He was coherent in his interactions with medical personnel and was physically able to climb to the ground from the deck of his third-floor apartment.
The judge instructed the jury that they could consider the mitigating effect of voluntary intoxication, stating, "[A]ny evidence **114 that you find credible of the defendant's consumption of alcohol, you may consider that evidence in determining whether the defendant specifically intended to commit an offense or whether the defendant deliberately premeditated the killing of [the victim]."
Because the defendant's intoxication may have been probative of a lack of capacity to formulate the intent necessary to prove murder by deliberate premeditation, the jury could have found the defendant guilty of a lesser offense or acquitted
*791
him had they determined his level of intoxication to be "debilitating."
Commonwealth
v.
Carter
,
Therefore, the question is whether this error created a substantial likelihood of a miscarriage of justice. Despite trial counsel's errors, her approach to the trial was consistent with the motion judge's determination that she "soft-pedaled" the intoxication defense. At the time of the closing argument, trial counsel believed that the defendant's medical records had been entered in evidence. Despite this belief, she opted not to argue that the defendant's intoxication diminished his capacity to form intent or deliberately premeditate. This suggests that although trial counsel chose to ride two horses into battle, she focused primarily on only one of them in closing argument. It "is a well-known and time-honored approach" to avoid emphasizing a defense that would undermine a primary defense theory.
Commonwealth
v.
Walker
,
The defendant's BAC, although high, would have been just one of many factors the jury could have considered in determining whether he was intoxicated to the point of debilitation, such that there was "reasonable doubt as to [his] ability to form the requisite criminal intent."
9
Lennon
,
c.
Closing argument
. The defendant asserts that the prosecutor made improper remarks in his closing argument. Because trial counsel did not object to the closing argument at trial, we review to determine whether there was an error and, if so, whether that error created a substantial likelihood of a miscarriage of justice. See
Veiovis
,
"To be sure, 'prosecutors are held to a stricter standard than are errant defense counsel and their clients.' "
Commonwealth
v.
Goitia
,
The prosecutor's call for jurors to follow their moral compass is troublesome, but we conclude that even if it was error, it did not create a substantial likelihood of a miscarriage of justice. The relevant portion of the prosecutor's argument is as follows:
"You ... impartial jurors also have something inside you besides your commonsense. And it's what I refer to as a moral compass. That little moral compass, when you know based on your gut that something's wrong, that something is askew with a certain situation. And I suggest to you, ladies and gentlemen, based on the evidence in this case, that your moral compass goes haywire when you consider what was in that apartment and his actions and his statements in the aftermath of 8:40 P.M. approximately on January 31st of 2005. You know, based on your everyday life experience that something was horribly amiss with his behavior, his statements and his actions that night."
It is well established that it is proper to ask a jury to rely on their common sense and life experience in assessing evidence and credibility. See
Lao
,
**118
Finally, although the prosecutor's statement that the defendant's possible intoxication did not "excuse" his actions was technically consistent with the law, we are concerned that the prosecutor crossed the line into a misstatement of the law. See
Commonwealth
v.
Rollins
,
That error, however, was not significant enough that our confidence in the jury's decision is shaken. The defendant's trial counsel referred to the defendant's intoxication in her closing argument only as a means to explain discrepancies between his multiple versions of the night of the killing. The prosecutor's statement, while erroneous, was a brief, isolated statement in his closing argument and was not egregious enough to infect the whole of the trial. Finally, the judge properly instructed the jury that closing arguments are not evidence, and it is well-established that "[t]he jury are presumed to follow instructions."
Commonwealth
v.
Hernandez
,
d.
Review pursuant to G. L. c. 278, § 33E
. The defendant asks us, in the alternative to his grounds for appeal addressed above, to exercise our authority under G. L. c. 278, § 33E, to either order a new trial or reduce his conviction to murder in the second degree. It is our statutory duty "to consider broadly the whole case on the law and the facts to determine whether the verdict is
**119
consonant with justice" (quotations and citation omitted).
Commonwealth
v.
Vargas
,
Our duty under § 33E"does not ... convert this court into a second jury."
Commonwealth
v.
Penn
,
Due to the unusual nature of this case, we reach the same conclusion as we did in the
Lanoue
case.
10
There was sufficient evidence before the jury to support their conclusion that the
**120
defendant had killed the victim after deliberate premeditation, but it was far from compelling. In addition to there being no definitive evidence as to what happened in the apartment on the night of the killing other than the victim being stabbed multiple times, there is nothing to suggest that there was any ill will between the defendant and the victim, or to suggest that there was any motive for the killing. See
Seit
,
The case is remanded to the Superior Court, where the verdict of murder in the first degree and sentence imposed shall be vacated. A verdict of guilty of murder in the second degree shall be entered, and a sentence imposed.
So ordered .
The defendant was acquitted of assault and battery.
The defendant raised one additional argument pursuant to
Commonwealth
v.
Moffett
,
The defendant's motion for a new trial was argued before a different judge, as the trial judge had retired.
The defendant sought to exclude evidence of his intoxication, including both statements made and physical evidence. His motion to suppress was denied, and the evidence of his intoxication was available to be admitted in evidence during trial.
The judge rejected the defendant's argument that defense counsel's strategic decision not to call the technician as a witness to testify at trial regarding the defendant's BAC was manifestly unreasonable, as "the overall defense strategy [was] to preserve, but not highlight, intoxication."
This standard differs from the
Saferian
standard motion judges apply when ruling on motions for a new trial based upon ineffective assistance of counsel claims.
Commonwealth
v.
Saferian
,
The defendant's appellate counsel argues that the defendant's testimony at trial was fantastical and would not have been credited by the jury. Although that may be so, the decision whether to testify is the prerogative of the accused.
Commonwealth
v.
Jenkins
,
The evidence suggesting that the defendant in
Montrond
was intoxicated was limited to a first responder's description of the defendant as "reek[ing] of [body odor], like sweat and [body odor], and of alcohol" and the defendant's emotional behavior that may have been viewed as consistent with being alcohol related.
Commonwealth
v.
Montrond
,
There is no BAC that constitutes "per se" debilitation in the way seen in prosecutions for operating while under the influence.
Colturi
,
In
Commonwealth
v.
Deconinck
,
Reference
- Full Case Name
- COMMONWEALTH v. Manolo SALAZAR.
- Cited By
- 21 cases
- Status
- Published