Commonwealth v. Ortiz

760 N.E.2d 282, 435 Mass. 569, 2002 Mass. LEXIS 4
CourtMassachusetts Supreme Judicial Court
DecidedJanuary 8, 2002
StatusPublished
Cited by21 cases

This text of 760 N.E.2d 282 (Commonwealth v. Ortiz) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Ortiz, 760 N.E.2d 282, 435 Mass. 569, 2002 Mass. LEXIS 4 (Mass. 2002).

Opinion

Greaney, J.

On September 18, 1998, a jury in the Superior Court convicted the defendant of the 1984 murder in the first degree (on theories of deliberate premeditation and extreme atrocity or cruelty) of Bemette McLaurin and assault with intent to rape Zindy Gomez. McLaurin and Gomez resided in an apartment building located next to a fruit store operated by the defendant. The defendant fled after the murder and was apprehended and arrested in July, 1995, in Puerto Rico.

The defendant argues error in (1) the denial of his motions to suppress physical evidence seized at the murder scene and his incriminating statements to the police; (2) certain remarks made by the prosecutor in his closing argument; and (3) the judge’s use of the Webster charge (Commonwealth v. Webster, 5 Cush. 295 [1850]) to explain reasonable doubt. We conclude that there is no basis to order a new trial and, as to the murder conviction, no reason to exercise our authority under G. L. c. 278, § 33E. Accordingly, we affirm the convictions.

There is no need to summarize the evidence. The Commonwealth’s case against the defendant was substantial and the force of the case will unfold as we set forth the findings of fact made by the two judges who heard and denied the defendant’s motions to suppress.

1. The judge’s findings of fact (which are fully supported by the evidence presented at the suppression hearing) on the defendant’s motion to suppress physical evidence are as follows. McLaurin, a twenty-one year old woman, lived with her fiancé, Dean Jeffries, in an apartment building next to the defendant’s fruit store in the Jamaica Plain section of Boston. On Saturday, April 28, 1984, Jeffries left the apartment at 7 a.m. to go to work. McLaurin remained alone. When Jeffries returned at about 3:30 p.m., McLaurin was not there. Her pocketbook and keys were on the bed, and the television had been left on. Thinking that McLaurin had stepped out for only a few minutes, Jeffries stayed in the apartment, but McLaurin never returned. He became concerned when he learned that McLaurin failed to [571]*571keep an appointment with his mother scheduled for that afternoon. Because McLaurin’s mother and stepfather were out of State attending a funeral, Jeffries contacted McLaurin’s aunts. After an unsuccessful search for McLaurin, a missing person report was filed, on April 29, at the police station. McLaurin’s aunts continued, unsuccessfully, to search for McLaurin. Mc-Laurin’s mother and stepfather returned on May 1, learned of McLaurin’s disappearance, and contacted the police.

On that same day, McLaurin’s relatives questioned residents of her apartment building. Zindy Gomez told them that she had some information, but would only speak to the police. Mc-Laurin’s relatives took Gomez to the police station. Gomez told the police that she had been sexually assaulted on Saturday, April 28, at about 9 a.m. by the defendant. Gomez had first met the defendant at a night club. There, she danced with the defendant until he became too aggressive, preventing her from dancing with another man and pushing her down into a chair. Gomez told police that the defendant owned a fruit store, and that she saw him take McLaurin by the arm into the store on Saturday morning.

When McLaurin’s relatives returned to the area of her apartment, they concluded that there was a high probability that Mc-Laurin was still in the fruit store. The store was locked, its shades were drawn, but the store displayed a sign in its window reading, “Come in, We’re open.” A crowd of about twenty-five people, mainly family and friends of McLaurin, had gathered outside the store. From the crowd, police officers learned that the store was open every day, that the defendant worked long hours, and that the defendant often played his trumpet on the sidewalk in front of the store.1 No one in the crowd had seen McLaurin or the defendant since Saturday morning.

Some people in the crowd obtained a crowbar with the intent to pry open the store door and enter. The police asked them to be patient and advised that it would be better to obtain a warrant. McLaurin’s stepfather and other men shouted that they would not wait. One of the officers, noting that it was after 4 p.m., [572]*572believed that obtaining a search warrant promptly was unlikely because the court was closed. He determined that McLaurin was likely inside the store and in need of assistance, having been severely injured, kidnapped, raped, or murdered. Mc-Laurin’s stepfather, a cousin of Jeffries, and a friend of Jeffries approached the door, and McLaurin’s stepfather started to force the door open with the crowbar. Concluding that obtaining a warrant was impracticable, that McLaurin was likely inside the store in need of assistance, and fearing the destruction of a likely crime scene, the police forced entry into the store. Once inside, they detected the odor of putrefaction and followed the odor to a mattress on the floor. Under the mattress they found McLaurin’s body, which had been wrapped in a rug and tied with a cord. McLaurin had been strangled with an electrical cord.

The judge correctly applied relevant principles of law to deny the motion. He concluded that the warrantless search of the defendant’s store was not unlawful under either the State or Federal Constitution because the Commonwealth satisfied its burden of clearly demonstrating that the search was justified by exigent circumstances. See Commonwealth v. Marchione, 384 Mass. 8, 10 (1981), and cases cited; Commonwealth v. DiGeronimo, 38 Mass. App. Ct. 714, 720-722 (1995). The judge concluded that the search was lawful under both the emergency and destruction of evidence exceptions to the warrant requirement. See Commonwealth v. Marchione, supra at 11-12. See also Commonwealth v. Huffman, 385 Mass. 122, 125 (1982). As to the emergency exception, the judge explained that the facts warranted the police in having a reasonable belief that McLaurin was in the fruit store in need of immediate assistance, and that they had acted reasonably by trying, unsuccessfully, to quiet and control the crowd before entering the store. As to the destruction of evidence exception, the judge found that the officers, faced with an unruly crowd of which some persons were preparing to storm the store themselves, did not have time to obtain a warrant, and that there was an immediate threat posed by the crowd to the integrity of a possible murder scene.

The defendant argues that, as to the emergency exception, the police lacked compelling reasons, supported by specific and ar-[573]*573ticulable facts, that would have led them to believe that Mc-Laurin was either alive and “in life-threatening distress,” or “in dire need of immediate assistance” inside the defendant’s fruit store. We disagree. There existed objectively reasonable grounds to believe that McLaurin was inside the defendant’s fruit store. McLaurin was last seen going into the store with the defendant. No one had heard from or seen either McLaurin or the defendant thereafter. After being seen with McLaurin, the defendant had not conducted business as usual. A sign indicated that his store was open, but it was locked. All of the store’s shades were drawn. Further, McLaurin was seen going into the fruit store with the defendant on the same morning that the defendant had sexually assaulted Gomez, and the police had information that the defendant could be aggressive and violent.

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Bluebook (online)
760 N.E.2d 282, 435 Mass. 569, 2002 Mass. LEXIS 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-ortiz-mass-2002.