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SJC-11812
COMMONWEALTH vs. FAUSTINO DIAZ, JR.
Hampden. September 8, 2017. - December 8, 2017.
Present: Gants, C.J., Lenk, Gaziano, Budd, & Kafker, JJ.
Homicide. Practice, Criminal, Argument by prosecutor, Capital case. Evidence, Chain of custody.
Indictment found and returned in the Superior Court Department on February 15, 2013.
The case was tried before Constance M. Sweeney, J.
Andrew S. Crouch for the defendant. Katherine E. McMahon, Assistant District Attorney, for the Commonwealth.
GAZIANO, J. In January, 1991, the victim was found lying
across her bed, with her face covered in blood, at a housing
complex for the elderly in Springfield. She had been sexually
assaulted and severely beaten. An autopsy determined that she
had suffered numerous broken bones in her face, sternum, and
ribs, and that she died as a result of blunt force trauma. 2
Police interviewed individuals who knew the victim and also
employees who worked at the complex, including maintenance,
nursing, and cleaning staff. The defendant, who was a part-time
maintenance worker there, was one of those interviewed. No
arrests were made, and no suspect was identified.
In 2012, Springfield police reopened the investigation.
They sought to interview men, including the defendant, who had
had access to the housing complex and to collect
deoxyribonucleic acid (DNA) samples from them. Investigators
visited the defendant at his place of employment, and he
consented to the taking of a DNA sample. Approximately one
month later, test results indicated that the defendant's DNA
matched the DNA profile from sperm found in the victim's body.
The defendant was arrested and indicted on charges of murder in
the first degree and aggravated rape.1 At trial, the
Commonwealth proceeded on theories of deliberate premeditation,
extreme atrocity or cruelty, and felony-murder with aggravated
rape as the predicate felony. A Superior Court jury found the
defendant guilty of murder in the first degree on all three
theories.
On appeal, the defendant argues that the prosecutor
1 Approximately one week before trial, the trial judge dismissed the indictment charging aggravated rape as time barred. See Commonwealth v. Morin, 478 Mass.415, 430-431 (2017). 3
presented arguments and asked the jury to draw inferences from
facts that had been excluded from their consideration; made
multiple misstatements of fact in her closing argument;
suggested that she had personal knowledge of the case beyond the
evidence that had been presented to the jury; argued in a manner
designed to appeal to the jury's emotions and inflame the jury;
and propounded medical theories based on facts that were not in
evidence and were, at best, entirely speculative. The defendant
contends that, as a result, a new trial is required. In
addition, the defendant maintains that his trial counsel was
ineffective for failing to object to the improper statements in
the prosecutor's closing. The defendant also asks us to use our
extraordinary power under G. L. c. 278, § 33E, to reduce the
verdict. For the reasons that follow, we affirm the conviction
and decline to exercise our authority to grant relief under
G. L. c. 278, § 33E.
1. Facts. We recite the facts the jury could have found,
reserving some facts for later discussion of particular issues.
a. Discovery of the victim's body. On Sunday,
January 20, 1991, the victim's daughter-in-law went to the
victim's apartment because the victim unexpectedly had not
attended church services. The daughter-in-law entered the
apartment and called for the victim, but received no reply.
When she inserted her key in the front door lock, she noticed 4
that the door felt unlocked. After looking through the living
room, dining room, and kitchen, she also noticed that the back
door was ajar, being held open by the deadbolt that was touching
the doorjamb.
In the bathroom, she found the victim's purse, wet, in the
sink, and a towel in the toilet. Finally, she found the victim
dead in the bedroom. The victim was lying face up with her head
at the foot of the bed; her face was covered in blood, and her
head was in a pool of blood on a pillow. The victim's nightgown
had been pushed up above her waist; her lower body was naked and
her blood-stained underwear was on the floor near the bed.
Crime scene investigators later found blood on the bathroom
wall, and blood spatters on the wall, dresser, and curtains in
the bedroom. They also found evidence of blood in the drains in
the kitchen and bathroom sinks, and copious amounts of blood on
the victim's face and hands and on the bedding.
An autopsy showed that the victim died of blunt trauma from
multiple injuries to her head and chest. Her nose was
dislocated and broken, and seven other bones in her face were
broken. There was bleeding from a head injury under her scalp,
as well as injuries to her neck muscles that were not evident
externally; part of her larynx had been crushed, and there was
blood in her mouth and lungs. She also had four broken ribs and
a broken sternum. Her ribs had been broken by blunt force 5
trauma. There were hemorrhages in her eyes that were consistent
with strangulation.
In addition, there was a tear in her vaginal wall caused by
blunt force and bleeding in her anal cavity. The medical
examiner2 took samples from a vaginal swab, an anorectal swab,
and a perianal swab for an evidence collection kit.
b. Initial investigation. Police found no sign of forced
entry into the apartment, and officers conducted the
investigation on the theory that either the victim knew her
assailant or the assailant had had a key. They interviewed
people who had known the victim and employees at the apartment
complex and assisted living center.3 The defendant was on the
list of employees to be interviewed because he was a part-time
maintenance worker at the complex and had specific duties in the
victim's building.
On January 21, 1991, officers went to the defendant's house
2 Due to his medical condition, the medical examiner who conducted the autopsy did not testify at trial. An officer who attended the autopsy testified as to his observations, and the Commonwealth's chief medical examiner testified based on an examination of the autopsy report and photographs taken during the autopsy. 3 The four separate apartment buildings in the complex were connected by a shared common basement. The kitchen door of the victim's apartment opened into a hallway, which led to another apartment, the basement, and the back door of the building. Some members of the security staff, as well as the maintenance supervisor, had been issued master keys to the building and the apartments. The nursing staff had access to keys that were kept in a locked box in their offices. 6
and asked him if he would come with them to the police station
to assist with their investigation of a death of one of the
residents at the apartment complex for the elderly. The
defendant agreed to accompany them to the police station and
speak with the officers; he was driven there in a police
cruiser. When the officers informed the defendant of the
victim's death, without having told him the circumstances of
that death, the defendant broke down and cried for five minutes.
The defendant said that he did not have a master key to the
apartment units. The defendant was not a suspect at the time he
gave his statement.
A chemist from the State police crime laboratory (crime
lab) examined the items from the evidence collection kit and
found sperm cells on the vaginal swab, the vaginal smear, the
anorectal swab, and the anorectal smear. He did not conduct DNA
testing on any of this evidence. In 1991, the crime lab did not
conduct any form of DNA testing; at that time, such testing was
not commonly conducted in State police laboratories nationwide.4
The crime lab began DNA testing in 2001. In 2002, a State
police analyst performed DNA testing on the anorectal swab and
4 In 1991, restriction fragment length polymorphism (RFLP) testing, an early method of DNA testing, was performed by the Federal Bureau of Investigations and some private laboratories. This method of DNA testing required a large sample to create a genetic profile, and required a lengthy period of testing in order to obtain the test results. 7
developed a DNA profile for the sperm fraction of the sample
found on that swab.5
c. Reopened investigation. In 2012, the office of the
Hampden County district attorney reopened a number of unsolved
homicides, including the victim's case. Detectives reviewed the
case file and began the renewed investigation by interviewing
men who had worked at the victim's apartment complex or who
otherwise had been acquainted with her. During the summer and
fall of that year, detectives interviewed between eight to
twelve men, and obtained DNA samples from them. Because there
was no probable cause to seek a warrant to obtain the samples,
the officers relied on the men's voluntary agreement to provide
a sample.
On November 27, 2012, police spoke with the defendant at
his workplace. The interview was conducted in an employee break
room where the defendant suggested that they talk. The
defendant and the officers sat at one of the tables. The
defendant said that he remembered the victim, he remembered that
she had been killed, and he had worked at the housing complex
for the elderly at that time.
5 At trial, the analyst described how a swab could contain two DNA profiles: a sperm fraction and a nonsperm fraction. A nonsperm fraction is present where a swab picks up the victim's skin cells, which contain DNA. The analyst used differential extraction, a process that relies on the different chemical properties of sperm cells and skin cells, to isolate the DNA from the sperm fraction. 8
The officers requested that the defendant provide a DNA
sample, and presented him with a consent form stating that he
agreed voluntarily to provide a sample through a buccal swab,
notwithstanding the absence of a court order requiring a sample.
Officers told him that they were collecting samples from former
employees for comparison purposes. The officers placed the form
on the table where the defendant could see it, and then read it
aloud to him.6 Because the defendant was not then a suspect and
the interview was voluntary, the defendant was not provided
Miranda warnings and the officers did not discuss a right to
consult with counsel. After listening to one of the detectives
read the form, the defendant consented to providing the DNA
sample and signed the waiver form. Detectives obtained a buccal
swab and left the defendant's workplace shortly thereafter.7 The
sample was delivered to the crime lab for analysis.
Analysts at the crime lab conducted DNA testing on samples
obtained from the defendant and five other men. The defendant's
6 An officer testified that the defendant had a heavy accent, but that he was able to understand what the defendant said. The defendant also appeared to understand the officers. 7 The defendant moved to suppress the DNA evidence obtained from the buccal swab taken at his workplace. After a hearing, the judge denied the motion, finding that the employee break room was not a coercive setting, in that the door to the room had been open and employees were coming into the room and leaving it during the interview. See Commonwealth v. Groome, 435 Mass. 201, 212 (2001). The judge found that the defendant voluntarily provided the police with a DNA sample. 9
DNA matched the DNA profile of sperm found on both the perianal
swab and the anorectal swab. Statistical analysis, introduced
at trial by a different State police chemist, established that
the likelihood a DNA profile would match a randomly selected
individual was 1 in 2.064 quadrillion in the Hispanic
population, 1 in 1.531 quadrillion in the Caucasian population,
1 in 87.11 quadrillion in the African American population, and
1 in 61.58 quadrillion in the Asian population. Police arrested
the defendant on January 21, 2013.
The investigating officers interviewed the assistant
administrator for the complex, and also reinterviewed the man
who had been the complex's maintenance supervisor at the time of
the victim's death. Each of them told police, for the first
time, that when the defendant returned to work, as scheduled, a
few days after the victim's death, he was not wearing the green
army fatigue jacket and work boots that he usually wore to work.
Instead, he wore a sport coat and shoes. The defendant worked
for approximately a month after the victim's death, and then did
not return. During that month, he did not wear the green army
jacket or the work boots.
The complex's maintenance supervisor also told police
during this later interview that, approximately one month before
the victim's death, the supervisor told the defendant to stop
asking residents for money, and offered to lend the defendant 10
money for the Christmas holiday. When the supervisor confronted
the defendant, he agreed that he had been asking residents for
money, said that he would stop doing so, and accepted the
supervisor's offer of a loan.
2. Discussion. In this appeal, the defendant challenges
several statements by the prosecutor during her closing
argument. He contends that the statements misstated the facts;
made improper inferences based on facts not in evidence;
suggested that the prosecutor had personal knowledge of the case
beyond the evidence that had been presented to the jury;
improperly sought to inflame the jury's emotions and distract
them from making a reasoned determination based on the evidence;
and urged the jury to draw speculative inferences about the
defendant's background, in an effort to prejudice the jury
against him, without any basis in the evidence. The defendant
maintains that these statements, and his trial counsel's failure
to object to them, require that he be granted a new trial.
"When a defendant raises a claim of error regarding a
prosecutor's closing argument, we consider (1) whether the
defendant seasonably objected; (2) whether the error was limited
to collateral issues or went to the heart of the case; (3) what
specific or general instructions the judge gave the jury which
may have mitigated the mistake; and (4) whether the error, in
the circumstances, possibly made a difference in the jury's 11
conclusions." Commonwealth v. Kater, 432 Mass. 404, 422–423
(2000), citing Commonwealth v. Kozec, 399 Mass. 514, 518 (1987).
While prosecutors are entitled to argue "forcefully for the
defendant’s conviction," closing arguments must be limited to
the facts in evidence and the reasonable inferences that may be
drawn therefrom. Commonwealth v. Wilson, 427 Mass. 336, 350
(1998). Within this framework, however, a prosecutor may
attempt to "fit all the pieces of evidence together" by
suggesting "what conclusions the jury should draw from the
evidence" (citation omitted). Commonwealth v. Burgess, 450
Mass. 422, 437 (2008). Because the defendant did not object to
any of the challenged statements at trial, we consider his
arguments to determine whether there was error and, if so,
whether it created a substantial likelihood of a miscarriage of
justice. Commonwealth v. Mello, 420 Mass. 375, 379-380 (1995).8
a. Defendant's reaction to news of victim's death. The
defendant argues that the prosecutor relied on facts not in
evidence in describing the defendant's reaction in 1991 when the
investigating officers informed him of the victim's death:
8 The defendant argues that his counsel was ineffective for failing to object to portions of the prosecutor's closing argument. This claim is reviewed under the substantial likelihood of a miscarriage of justice standard, which is more favorable to the defendant than the standard for ineffective assistance of counsel in other types of cases. See Commonwealth v. Painten, 429 Mass. 536, 549-550 (1999), and cases cited; Commonwealth v. Wright, 411 Mass. 678, 681-682 & n.1 (1992). 12
"Is it a coincidence that in this case when the police talked to him in 1991 about this case, the defendant cries uncontrollably? [A detective] described it extremely emotional, over the top. Was this a coincidence? [The detective] hadn't even told him how [the victim] had died. No other witnesses cried like this. He hadn't even told him how [the victim] had died.
"He hadn't told him that she had been beaten to death and that she had been raped, that [the ninety]-year-old [victim], [four] feet [ten] inches and 110 pounds, that she had beaten to death and raped. But yet, yet, the defendant cries uncontrollably. Ask yourself why and what conclusions you can draw from that evidence.
"I would suggest it's because the defendant didn't need to be told what had happened to [the victim], he knew. He knew what he had done on January 19th of 1991. He knew. He knew that he had beaten her to death and he knew that he had killed her, and he was scared that he was going to get caught."
As the defendant points out, the trial judge sustained an
objection to part of the detective's testimony:
The prosecutor: "And you indicated, and it's written in the statement, that the defendant became upset and began to cry?"
The detective: "That's correct."
The prosecutor: "Could you describe what this was like?"
The detective: "It was -- he -- to me, he was over the top on the way he started crying. It was -- he was extremely emotional. Something I had not experienced before from similar witnesses in a case."
Defense counsel: "Objection, Your Honor."
The judge: "Sustained as to that observation."
The defendant's objection was sustained only as to the
detective's comparison of the defendant's reaction to that of 13
similar witnesses. Had the judge sustained the objection as to
the entire answer, she would not have limited her decision "to
that observation." The detective's statements that the
defendant "was extremely emotional" and "was over the top on the
way he started crying" were not excluded. The detective's
testimony thus supports the prosecutor's statement in closing
that the defendant's reaction to the news of the victim's death
was "extremely emotional, over the top."
Further, on redirect, the prosecutor asked the detective,
"[I]n regards to the defendant breaking down and crying when you
were interviewing him, how many other witnesses did that that
you interviewed?" The detective responded, "None." The
defendant did not object. This testimony supports the
prosecutor's statement that "[n]o other witnesses cried like
[the defendant]."
The defendant also argues that the prosecutor's statement
that the detective "hadn't even told him how [the victim] had
died" before the defendant's emotional reaction is inaccurate;
at that point, the officer indeed had told the defendant that
the victim had been killed. The officer did testify that he
informed the defendant that the victim had been killed. He
testified also, in response to a question from the prosecutor
about whether the officer had mentioned "the manner in which
[the victim] had been murdered" or "the manner in which she was 14
found," that he provided the defendant with "[n]o details" about
the victim's death. Thus, the prosecutor's statement that the
officers had not told the defendant "how" the victim died before
the defendant began crying was a reasonable interpretation of
the detective's testimony.
b. Speculation about defendant's motive. The defendant
contends also that a new trial is required as a result of the
prosecutor's speculation about his motive for the killing:
"You can ask yourself why, why would someone do something like this? I don't know why. . . . Did he have a drug problem? I don't know. The medicine cabinet was open and left open in her bathroom."
There was evidence that, when the victim was found, the
door of the medicine cabinet in the bathroom had been partially
open, and her purse had been upended in the bathroom sink. As
the defendant points out, however, no evidence was introduced
that suggested the defendant used drugs or had any issues with
substance abuse. This speculation on the defendant's possible
motive for the offense was thus improper, and should not have
been made. Moreover, the speculative suggestion, without
evidentiary support, went to an issue that, while not an element
of the offense, might have been a significant question in the
minds of the jury: what would have motivated such a brutal
attack on a ninety year old woman who stood less than five feet
tall. 15
Nonetheless, the prosecutor did clarify that she was
speculating in making this statement, commenting at the
beginning of these musings, "I don't know why [the defendant
would have done this]" and ending by repeating, "I don't know."
The prosecutor also explained, accurately, that motive "[is] not
an element that the Commonwealth has to prove. The Commonwealth
doesn't have to prove why." See Commonwealth v. Bois, 476 Mass.
15, 33 (2016). In the circumstances here, given the strength of
the Commonwealth's evidence, and the brief and passing nature of
these statements, the improper speculative remarks would have
had but little, if any, effect on the jury's thinking.
c. Inferences to be drawn from victim's injuries. The
defendant contends that the prosecutor also misstated the
evidence in presenting her argument in support of the
Commonwealth's theory that the manner of the victim's death was
extremely atrocious or cruel. The prosecutor told the jury that
the victim "didn't die from the first blow . . . . [H]ow else
would you explain blood on the palms of her hands and bruising
on the back of her hands, on her fingers. . . . [The victim]
was alive. She suffered. She was trying to protect herself,
covering her bleeding head as the defendant struck her
repeatedly, bruising her hands as she covered her head."
While the jury could have found, based on the medical
evidence, that the victim had been killed by the first blow to 16
her head, as the defendant argues, the medical evidence amply
supports the prosecutor's assertions that the victim was alive
after repeated blows, and would have suffered from her numerous
injuries. On cross-examination, the medical examiner testified
that one blow to the head of a ninety year old woman could
result in immediate death. The medical examiner also testified,
however, that in his opinion, the cause of the victim's death
was "multiple blunt trauma" to the "head and chest." He further
testified that there was physical evidence consistent with
"aspirating the blood that was in the pharynx," which meant that
the victim would have been alive and struggling to breathe after
the attempt at strangulation or after the multiple blows to her
face. The medical examiner also testified that the victim's
broken bones, displaced nose, and other injuries would have been
painful.
"Remarks made during closing arguments are considered in
the context of the whole argument, the evidence admitted at
trial, and the judge's instructions to the jury." Commonwealth
v. Whitman, 453 Mass. 331, 343 (2009). The defendant is correct
that the evidence here did not establish definitively at what
point during the attack the victim died. One of the reasonable
inferences to be drawn from the evidence, however, was that the
victim was not killed by a single blow, and suffered during the
brutal attack. Indeed, the medical examiner was inclined to 17
that belief. Therefore, this portion of the prosecutor's
statement was not improper. See Commonwealth v. Andrade, 468
Mass. 543, 552 (2014) ("[T]he prosecutor did not misstate the
medical examiner's testimony. Rather, he . . . asked the jury
to draw an inference [based on all of the evidence]").
The defendant also challenges the prosecutor's statement in
closing that the victim fought to defend herself and had been
trying to protect her head with her hands when her hands were
bruised. The defendant argues that the Commonwealth presented
no evidence from which the jury could determine that the bruises
on the back of the victim's hands were defensive wounds. As the
defendant asserts, the Commonwealth did not introduce any expert
testimony to support this theory. See Commonwealth v. Cyr, 425
Mass. 89, 96-97 (1997) (medical expert may testify that injuries
were defensive wounds). The defendant notes that there were no
other injuries to the victim's hands and arms, such as
scratches, cuts, or abrasions, and no biological material was
found under her fingernails. Nonetheless, the nature of the
assault and the number of blows inflicted on the victim could
have supported an inference that she bruised her hands in some
manner attempting to ward off her attacker. To the extent that
the evidence did not allow the prosecutor to argue that the
victim sustained these wounds "as she covered her head," the
brief comments did not create a substantial likelihood of a 18
miscarriage of justice, given the overwhelming evidence of the
brutality of the attack against a particularly vulnerable
victim.
d. Suggestion that the defendant disposed of blood
evidence. The defendant claims also that the prosecutor's
suggestion that the defendant needed to remove blood from his
person before leaving the apartment, or that he had gotten blood
on his clothes, was improper. The prosecutor's suggestions to
this effect, however, were inferences the jury properly could
have drawn from the blood spatter on the walls, the curtains,
and the furniture in the bedroom; the blood on the wall in the
bathroom; the victim's wet purse in the sink; the towel found in
the toilet; the evidence of blood in the drains in the bathroom
and kitchen sinks; and the testimony that, after the victim's
death, the defendant never wore the jacket and work boots to
work that he previously had worn routinely.
e. Relief pursuant to G. L. c. 278, § 33E. At trial, the
defendant argued that certain items of physical evidence had
been mishandled and some pieces of evidence had been lost, thus
giving rise to reasonable doubt about his guilt. Although the
defendant did not raise any arguments on appeal concerning the
handling of the evidence, because the record does indicate
issues with respect to specific items, we consider these issues
as part of our duty pursuant to G. L. c. 278, § 33E. 19
The crime lab analyst who tested the anorectal swab in 2002
testified that, in February, 2003, she wrote a note that "[t]he
original case file cannot be located at this time." The
"original file" referred to the forms presented when the sample
was submitted to the crime lab in 1991. The anorectal swab
itself was not lost; the crime lab returned the sample to the
Springfield police in 1995, and the Springfield police
resubmitted the sample to the crime lab in 2001.9 "Alleged
defects in the chain of custody usually go to the weight of the
evidence and not its admissibility." Commonwealth v.
Viriyahiranpaiboon, 412 Mass. 224, 230 (1992). Where the judge
allowed the defendant to argue that "the Commonwealth has not
proven this case, has not connected the dots" because of the
assertedly defective chain of custody, there was no error. See
id. at 230-231.
We have carefully reviewed the entire record, pursuant to
our duty under G. L. c. 278, § 33E, and discern no reason to set
9 Similarly, the defendant argued in his closing that other physical evidence was "lost" because it had been found in the Springfield police department evidence room the week before trial. An officer testified that Springfield police believed they had produced all of the evidence, only to discover an additional box that had the case label on a side that had not initially been visible to them. At trial, the defendant made use of this situation to argue to the jury that the evidence had been lost, notwithstanding that the defendant had received information about the evidence a week prior to trial, and, on appeal, does not make any claim of prejudice from the late disclosure. Accordingly, there is no error. See Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 230-31 (1992). 20
aside the verdict or to reduce the degree of guilt.
Judgment affirmed.