Commonwealth v. Alcantara

471 Mass. 550

31 N.E.3d 561

COMMONWEALTH

v.Levi Omar ALCANTARA.

SJC–11468.

Supreme Judicial Court of Massachusetts, Essex.

Argued Feb. 6, 2015.

Decided June 1, 2015.

Jeffrey L. Baler for the defendant.

Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, & HINES, JJ.

Opinion

CORDY, J.

On April 22, 2006, Maria Sastre was beaten to death with a hammer in her home. When one of her children, Jesus, attempted to intervene, he, too, was beaten with the hammer but was able to escape. Soon thereafter, the defendant, Levi Omar Alcantara, called the police from a nearby gasoline station claiming that he had also been a victim of the attacks in Maria's home. In contrast, both Jesus and his brother, Christopher, identified the defendant as the assailant. The handle of the hammer tested positive for the defendant's deoxyribonucleic acid (DNA), and red-brown stains on the defendant's clothing were consistent with the DNA of both Maria and Jesus.

The defendant was indicted for murder in the first degree, assault with intent to kill, and assault and battery by means of a dangerous weapon. A jury convicted him of all of the charges, including murder in the first degree by reason of extreme atrocity or cruelty. On appeal, the defendant assigns error to several evidentiary rulings made by the trial judge. We find no reversible error and no basis for exercising our authority under G.L. c. 278, § 33E, to reduce the level of guilt or to order a new trial. Accordingly, we affirm the defendant's convictions.

1. Background. a. The trial. We recite the facts that the jury could have found, reserving certain details for the issues raised on appeal. On April 22, 2006, Jesus awoke to the sound of his mother screaming inside their home on Washington Street in Lawrence. On further investigation, he observed a man beating his mother with a hammer. Another of Maria's children, Christopher, then observed the assailant on top of Jesus, beating him with the hammer. Jesus was able to rid the assailant of the hammer, at which point the assailant struck him with a vase. Jesus wrested himself free and ran from the home. Christopher then observed the assailant leave the home, jump over a fence, and escape down an alley.

Jesus ran to a neighbor, who placed an emergency 911 telephone call in which she reported that “some guy went inside [her] neighbor's house and he hit a little kid and he's bleeding out of his head ... screaming to [her] to call the ambulance to help him.” Lawrence police officers responded to the scene and interviewed Jesus, who described the assailant as wearing a blue or white T-shirt and blue or dark jeans. Jesus and Christopher, who were fourteen and twelve years of age, respectively, at the time of the assault, told the police that they recognized the assailant as the cousin of their mother's former boy friend, Ysidro Santos.¹ Maria was transported to the hospital, where she was pronounced dead as a result of skull fractures and brain lacerations caused by multiple “chop wounds ” of the head that were consistent with blows from a hammer.

Nineteen minutes after the neighbor's 911 call, the defendant placed two 911 calls in which he stated that “something happened to [him]”; that he had been at Washington Street; and that he was now at a gasoline station about one-quarter mile away. An officer responded to the gasoline station and found the defendant clad only in boxer shorts, socks, dress shoes, and a torn and stained blue T-shirt; with scratches on his face, forearms, and chest; and with a cut on his right hand. The defendant approached the officer and screamed, “they tried to kill me. They threw me in the car and they tried to kill me, too.”

The defendant was transported to the police station for further questioning. The defendant told the police that four Hispanic men entered Maria's home and beat him with a baseball bat and the victim with a hammer. Two of the men then forcibly removed the defendant from the home, placed him in their automobile, removed his clothing, and robbed him. The defendant stated that he subsequently was able to escape from the vehicle, at which point he ran to the gasoline station and placed the 911 calls. When the defendant was being escorted to the police station bathroom—and, in the process, by an interview room where Christopher was sitting with the door ajar—Christopher exclaimed: “That's the guy.” Christopher and Jesus were subsequently presented with photographic arrays and asked if any of the photographs depicted the assailant. Both Christopher and Jesus selected the defendant's photograph.

A request was made for Santos to submit a DNA sample, but Santos never submitted the sample and the police never followed up with him. The police did, however, obtain DNA samples from the defendant, Maria, Jesus, and Christopher. The defendant's DNA was consistent with a profile obtained from a red-brown stain on the handle of the hammer. The handle also reflected DNA from an unknown person. There was other DNA evidence implicating the defendant as the hammer-wielding assailant. For example, a red-brown stain on the defendant's shoe was consistent with Maria's DNA, while a red- brown stain on the defendant's T-shirt was consistent with both Maria's and Jesus's DNA. The police did not find the remainder of the defendant's clothing, which the Commonwealth attempted to explain by the high water level of a nearby river.²

The theory of the defendant's case was misidentification and the failure by the police to conduct an adequate investigation into other plausible suspects, including Santos and the four men mentioned in his statement at the police station. The defendant highlighted discrepancies between Jesus's and Christopher's descriptions of the assailant, as compared to the clothing the defendant was wearing at the gasoline station and in surveillance footage from a convenience store shortly before the attack. The defendant also attempted, with varying success, to introduce evidence that Santos was a third-party culprit and that the police should have conducted a more extensive investigation into his alleged role in orchestrating the attack on Maria, Jesus, and, indeed, the defendant.³

b. Suppression and admission of the custodial statement. Prior to trial, the defendant filed a motion to suppress the statements he had made at the gasoline station and police station. The motion judge observed that the statement at the gasoline station was not made in response to police questioning and, therefore, was not subject to suppression. In contrast, the judge concluded that the Commonwealth failed to prove that the custodial statement at the police station was voluntary beyond a reasonable doubt. Consequently, the statement made at the police station was suppressed.

At trial, however, the defendant moved to admit the suppressed

statement as evidence of a third-party culprit, consciousness of innocence, and the inadequacy of the police investigation. The Commonwealth objected and the judge initially denied the motion, ruling that, even if the defendant could waive his constitutional right to the suppression, the statement constituted inadmissible hearsay. The Commonwealth then withdrew its objection to the statement with respect to the adequacy of the police investigation, prompting the judge to admit the statement only for that limited purpose. The judge then instructed the jury that the statement was “permitted to be introduced by the defendant only as it bears on the police investigation of this case. So it should be clear that the Commonwealth had no choice, they were not permitted to introduce this during their case-in-chief.”

During the charge conference, the Commonwealth requested a consciousness of guilt instruction referencing several statements that the defendant had made to the police. The defendant objected to the use of the custodial statement for this purpose, as it had only been admitted for the purpose of challenging the police investigation. The judge disagreed, stating to counsel that “once the Commonwealth withdrew its objection to the custodial statements it obviously mooted or made moot that limiting instruction.” The judge later instructed the jury:

“You've heard evidence suggesting that the defendant may have made false statements; that is, he may have intentionally made certain false statements around the time of his arrest. If the Commonwealth has proven the defendant did make those statements, you may consider whether such actions indicate feelings of guilt by the defendant and whether in turn such feelings of guilt might tend to show actual guilt on these charges.”

c. Midtrial hearings. During the trial, a hearing was held to determine the admissibility of a statement by a local convenience store clerk that there was “hearsay in the neighborhood” that Santos had stated that Maria “deserved what she got.” In addition, a voir dire hearing was conducted to determine whether the statements of Maria's daughter, Chabley, and the godfather of Maria's children could be introduced through the testimony of two State police officers as evidence of a third-party culprit or inadequate police investigation. Trooper Brian O'Neil testified that the neighbor gave him a handwritten statement stating that Chabley had told the neighbor that “her mother's boyfriend had

threatened the mother. He told her to watch her back, that one of these days something bad was going to happen to her.” Lieutenant James Dowling testified that the godfather told him that Chabley had said “that [Y]sidro Santos stated that he was going to have her mother killed because she did not want to be with him anymore.” Although, at first, the godfather told Lieutenant Dowling that Chabley told him this directly, the godfather later stated that he had heard it from another person who had heard it from Chabley. The judge concluded that each of these statements was unreliable and,...