Commonwealth v. Rodriguez .

457 Mass. 461

931 N.E.2d 20

COMMONWEALTH

v.Lionel RODRIGUEZ (and a companion case ¹ ).

SJC-10160.

Supreme Judicial Court of Massachusetts,Bristol.

Argued March 5, 2010.

Decided Aug. 9, 2010.

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Kevin S. Nixon, Boston, for Lionel Rodriguez.

Richard J. Fallon, West Acton, for Ryan Marshall.

Rachel J. Eisenhaure, Assistant District Attorney (Shoshana E. Stern, Assistant District Attorney, with her) for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, BOTSFORD, & GANTS, JJ.

IRELAND, J.

In February, 2006, a jury convicted the defendant Lionel Rodriguez of murder in the first degree on the theory of extreme atrocity or cruelty. ² His codefendant, Ryan Marshall, was convicted of being an accessory before the fact to that murder also on the theory of extreme atrocity or cruelty. ³ The victim was George R. Carpenter, a longtime friend of Marshall's mother. ⁴ The defendants, each represented by new counsel on appeal, raise various arguments. Rodriguez argues (1) that the prosecutor improperly used a peremptory challenge to remove the sole Hispanic juror; (2) error in the failure to instruct the jury on an “honest but mistaken” identification as set forth in Commonwealth v. Pressley, 390 Mass. 617, 619-620, 457 N.E.2d 1119 (1983); and (3) error in the admission of autopsy photographs and testimony of the medical examiner. Marshall argues (1) insufficiency of the evidence; (2) that his conviction violated principles of due process; (3) error in the judge's instructions to the jury; and that we exercise our authority under G.L. c. 278, § 33E, to reduce his conviction. ⁵ We conclude, as to Rodriguez, that errors in the admission of autopsy photographs and testimony of the medical examiner created a substantial likelihood of a miscarriage of justice as to his conviction of murder in the first degree on a theory of extreme atrocity or cruelty, and reduce his conviction to murder in the second degree. Because there was insufficient evidence to sustain Marshall's conviction as an accessory before the fact, we reverse his conviction and set aside the verdict.

1. Background. The jury could have found the following facts. On the evening of February 15, 2001, Marshall's mother, Donna Medeiros, met some friends, including Elizabeth Cardona, David Amaral, Tony Ramos, Kevin Rose, and the victim, at a pub in New Bedford. After closing, at about 2 a.m. on February 16, the group went to Medeiros's nearby apartment on Bluefield Street. ⁶ There, they drank and continued to socialize.

At approximately 2:30 a.m., Marshall came home, accompanied by his girl friend Rebecca Rose, ⁷ and some friends, namely Robert Tirado, Jonathan Torres, and Heather Lawrence. Earlier in the evening, Marshall and Rose had been at Tirado's home, which was part of the housing complex where Marshall lived. While at Tirado's home, other friends of Marshall arrived, including Rodriguez, Torres, Lawrence, Dennis Smith, and Orlando Badillo. At the time, Rodriguez drove a purple Mitsubishi automobile, and Badillo drove a large Ford sports utility vehicle (SUV).

After spending some time at Medeiros's home, Kevin Rose decided to leave, departing through the kitchen door. While waiting outside, he saw the victim, Marshall, Tirado, and “a girl” leave through the kitchen door. The men were arguing. ⁸ Tirado was upset. He was screaming, ran out in the street, and ripped off his jacket, throwing it to the ground. He then used his cellular telephone.

The victim, accompanied by Ramos, went over to the victim's automobile, a Toyota Camry. The victim got into the driver's seat and Ramos entered the front passenger side. As the victim started to drive away, Tirado pulled out a large knife and slashed the front driver's side tire of the Camry. The tire went flat. After slowly driving the Camry down the street a short distance, the victim got out of the vehicle and again argued with Tirado.

Ramos opened the trunk of the Camry to get a spare tire. Amaral, who had entered his automobile, got out to assist him. ⁹ Although the men were able to lift the Camry up on a jack, they were not able to change the tire. Before they could do so, Badillo arrived in his SUV and Rodriguez drove up in his Mitsubishi. ¹⁰ Several men stepped out of the vehicles, went over to the victim, and started hitting him. Neither Amaral nor Kevin Rose was able to see who hit the victim because each was leaving the area. As he was driving away, Kevin Rose looked into his rearview mirror and observed that the victim had fallen to the ground and that a “bunch of men” were “stomping” on him. Once Amaral and Kevin Rose were able, each dialed 911 to report the attack of the victim.

While the victim lay on the ground, Rose observed Tirado repeatedly kick him in the torso area. She saw Marshall twice kick the victim's right leg. She saw Badillo kick the victim in the head. In addition, she saw Smith (who had arrived in Rodriguez's vehicle) and Rodriguez each kick the victim repeatedly. She also saw that the victim was struck with a tire iron, but did not see who struck him. Rose testified that no one else had been involved, and stated that Torres did not strike the victim. ¹¹ She further testified that, although Marshall had attempted to throw a trash barrel on the victim, she had been able to stop him. ¹²

When police arrived, they found the victim lying on his back in the street, unconscious and gasping for air. There was blood coming from the back of his head. There was a crowd of about thirty people in the vicinity. Paramedics arrived within minutes and transported the victim to a hospital. He died later that day as a result of acute massive intra-abdominal hemorrhage due to blunt force trauma. ¹³ At approximately 9 a.m. that morning, police went to the Medeiros home and asked to speak with Marshall. Marshall went to a police station with them, where he made a statement that was not recorded. Although Marshall stated that Rose and Tirado had been at his home on February 16, he said that when his mother's friends began to leave, he went upstairs to bed. Shortly later, Marshall went on to explain, Rose woke him, telling him that someone had been beaten up outside. He got up and looked outside the window and saw police vehicles.

Forensic evidence linked Marshall to the beating of the victim. Deoxyribonucleic acid (DNA) testing revealed that blood consistent with the victim's was found on boots worn by Marshall on February 16.

The defendants did not testify. Their trial counsel, through cross-examination, attempted to demonstrate that Rose was a drunk and lying teenager. Based on Rose's testimony, Rodriguez's trial counsel argued that she was a less than credible witness also on account that she helped a murderer (namely, Tirado) flee and hide, and had sexual relations with him while doing do. ¹⁴ In addition, the defendants' trial counsel argued that aspects of the police investigation were faulty.

Rodriguez's trial counsel sought to establish a defense of misidentification. He elicited from Medeiros, Amaral, and Kevin Rose that they did not see Rodriguez on February 16, and argued that Rose's identification of Rodriguez was unreliable because although she previously had met him, she did not “know” him. Rodriguez's trial counsel also called two police officers who testified that they had interviewed Kevin Rose after arriving to the scene, and he had not implicated Rodriguez.

Marshall's trial counsel argued that the injuries to the victim allegedly from Marshall did not contribute to the victim's death. The argument derived from testimony Marshall's trial counsel elicited during the cross-examination of the medical examiner, who opined that the abrasions to the victim's knees were not fatal, and could not have contributed to the cause of death.

2. Discussion. a. Rodriguez's appeal. i. Peremptory challenge. All the members of the jury that convicted Rodriguez (who is Hispanic) were white, as was the victim. Rodriguez argues that the prosecutor's peremptory challenge of the sole Hispanic venireperson violated the equal protection clause of the Fourteenth Amendment to the United States Constitution, Batson v. Kentucky, 476 U.S. 79, 84-89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and art. 12 of the Massachusetts Declaration of Rights, Commonwealth v. Soares, 377 Mass. 461, 486-488, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). ¹⁵ The issue arose as follows.

The empanelment process occurred over a two-day period. The judge first addressed the venire as a group and then engaged in individual questioning. See Commonwealth v. Young, 401 Mass. 390, 398, 517 N.E.2d 130 (1987), overruled in part on another ground in Commonwealth v. Ramirez, 407 Mass. 553, 555, 555 N.E.2d 208 (1990) (requiring individual voir dire when requested by defendant and when defendant and victim are members of different racial groups). During the first day of empanelment, the prospective juror in question (juror) was asked, as were all prospective jurors, whether any family member or close friend had ever been accused of, been a witness to, or the victim of, a violent crime. The juror stated that her son, who was fifteen years of age, had been caught stealing and was involved with the Juvenile Court in Attleboro.

After asking the juror to step aside, the judge asked whether there was an objection to him discharging the juror for cause. Marshall's trial counsel had no objection and the prosecutor affirmatively requested that the juror be removed for cause. Counsel for Rodriguez, however, objected because the juror was “the only Hispanic juror.” The judge stated that he would explore the matter further, and resumed questioning of the juror.

Further questioning of the juror disclosed that her son received one and one-half years of probation and had to pay restitution. Her son was still “on...