Male Speaker: SJC-12393,
Commonwealth v. Benjamin Martinez.
-: Thank you.
Mr. Baler.
-: Good morning.
May it please the court,
Jeffrey Baler for Benjamin Martinez.
First off, we contend here
that certain third-party culprit evidence
should have been admitted.
First, evidence relating
to the so-called Dominican brothers.
Mr. Martinez sought to introduce this evidence
to show that the killing was actually a result of revenge
based on the actions of the decedent's boyfriend
and the father of her children.
Martinez attempted to introduce police reports
in which Roberto Colon, who was the boyfriend,
told police that he believed
that the brothers had killed the decedent for revenge.
-: Mr. Baler, you got two levels of hearsay there.
-: Right.
-: And you know you need a number of things,
including other substantial links
to get the the hearsay in under third-party culprit.
And you don't have any evidence really beyond motive.
And perhaps most importantly,
you've got somebody in the apartment,
Mr. Guzman.
You got somebody in the apartment
who is the actual third party culprit
who comes out through the testimony of the defendant.
How does allowing this second level hearsay
with no other evidence other than motive available
not confuse the jury,
nevermind getting to the hearsay
with other substantial links.
-: Well, first off,
Guzman was just brought up in the testimony of Martinez.
So, Martinez may well not have even testified
if this third-party culprit evidence was allowed in.
-: Well, I'm sorry to interrupt you,
but that's a very good point.
It doesn't really get developed in your brief
and it doesn't get responded to by the Commonwealth,
but that's a really good point.
The response to it is he's gotta testify.
His DNA's under the victim's fingernails.
-: That's true.
But it could have been argued like in in the cases
that I cite in my 33E argument
that just because DNA was present
doesn't mean that Martinez was the killer.
I mean, similar to cases
where fingerprints were found at the scene.
-: No, that's a good point.
I agree with you.
I'm just responding to that jeez,
maybe he wouldn't have testified
if he got this other third-party culprit evidence in
and we wouldn't have heard all about Mr. Guzman.
And I'm just saying his DNA is under the fingernails.
It's pretty tough when you're saying
one in five quintillion not to take a walk to the witness.
-: Right.
Well, the jury could have concluded that he was there,
but could have found that just based on this DNA,
it was not sufficient to show that he was the actual killer.
And even if Martinez did testify about Guzman,
if the jury heard all of this third-party culprit evidence,
they may well have concluded
that Guzman was the person who actually killed her
because there was people with motive
and opportunity beyond the defendant to kill her.
-: Is Guzman the same person is Ramon Rivera?
-: No.
It's Alexei Guzman.
I know that the names.
There's an Alex and an Alexei.
No, he's not the same as Ramon Rivera.
Alexei Guzman was a friend of the decedent's.
And he disappeared after this incident.
And just to point out that this incident occurred in 2004.
Martinez was not implicated until a CODIS hit in 2014.
So he didn't even have an opportunity
to really investigate any of this underlying evidence
relating to the third parties
because it was 10 years after the offense.
And we contend that there was
substantial connecting links to the brothers.
Even if you look beyond the testimony,
I mean, the statements of Colon, and Rivera, and Zapata,
the decedent had significant knife wounds in the face
which were similar to those of Colon.
The brothers and the decedent
were both drug dealers in the area.
Police even found a photo in the apartment
labeled as one of the brothers,
in the decedent's apartment.
And moreover,
neighbors saw two individuals leaving the scene,
which would have shown that the brothers were involved.
-: Well, that's leaving a lot of information out.
They've got no blood on them.
It's in the middle of the day.
They look like they practically just took a shower.
-: Right.
-: And the scar as it relates to the boyfriend in the face,
Colon,
compared to 30 plus stab wounds to the victim,
I'm not sure that fits so nicely.
-: Well, the major wound
was a slash across the face of the decedent.
Also, there was three witnesses who were telling police
that the brothers were the killers.
Colon outlined this incident at Chicopee
where he assaulted one of the brothers.
He subsequently was shot
and cut by the brothers in the Dominican Republic.
Then he returned to Massachusetts
and he was told that the brothers would kill him.
The decedent said that this was the reason
that they might kill him.
And also, the decedent told Colon
that the brothers had stolen drugs and money.
And that she told the brother's family about this
and they were angry with her.
And finally, she purchased heroin
from an associate of the brothers.
So just based on Colon's statement,
there was substantial probative value
that the brothers actually did the killing for revenge.
And this was backed up by Rivera's statement to police
where he said he had heard about the stabbing
and the shooting,
and that people were telling the decedent
to move out of the house.
And finally, we have Zapata who talked the word out
was that the brothers killed her
because of the Chicopee incident.
-: Now, Rivera doesn't testify.
-: Sorry?
-: Ramon Rivera, does he testify?
-: No.
-: Okay.
That's two levels of hearsay.
And then for Zapata, he wasn't in Chicopee.
He has no personal knowledge.
-: He told police that Colon asked him
to participate in the offense
and that he was the one who gave Colon a gun.
-: Right.
But he wasn't in Chicopee when the event occurred.
-: No, he was not.
And also, police testified
that this seemed like a viable story at the time.
So we contend that, well,
and even if there was a hearsay problem here,
this evidence wasn't admitted for Bowden purposes either.
And Bowden, of course,
gets rid of any hearsay question
because it's not introduced for the truth of the matter,
but introduced to show
that police didn't properly investigate.
And these three statements,
police testified that this is what the witnesses told them,
so there's no question that police knew about it.
And if this evidence was introduced to show,
at least to show Bowden,
the jury may well have concluded
that the investigation didn't go far enough.
For example, the photograph that was found
in the decedent's apartment
that that was labeled as one of the brothers,
police did not know who told them
that that was one of the brothers.
-: I have a question.
I don't think anybody addressed it,
but maybe it makes a difference here.
You cited to Commonwealth versus Moore
in talking about third-party culprit
and you referenced in more than say a footnote,
I think more as a 2019 case,
that says that Silva Santiago was wrong
about the balance of probative value and undue prejudice.
In fact, the appropriate balance
would (indistinct) to your client's benefit.
Do you get that standard as we review here Bowden,
or do we use the Silva Santiago standard?
-: I'm sorry,
I don't recall what was the court said in Moore.
But, of course, if it's Moore.
-: Moore said that Silva Santiago's (indistinct)
has to exceed undue prejudice,
actually that it's a standard in favor of admissibility.
The Bowden is admitted
unless the probative value is substantially outweighed
by the undue prejudice.
-: Right, right, yes.
David: Much better for your client.
-: Yes,
that's exactly the standard we contend should be applied,
that the probative weight outweigh the prejudice.
-: That's not what you want.
You want the opposite.
-: I want the opposite?
That the prejudice was okay.
Sorry.
So we contend that at least this evidence
should have been admitted for police investigation.
And again, being so long after the offense,
this was the only evidence that Martinez had.
He could not go and find these witnesses.
Police even said that they looked for them
and Colon is probably out of the country.
Many of these people were illegally in this country
and likely returned to the Dominican Republic.
-: You make an argument concerning jury instructions
where the error might not really matter in many cases,
if indeed it is even error.
But here, your concern is in dealing with credibility
that the judge did not say something along the lines
of your disbelief of a witness
is not proof that something didn't happen.
You have to look elsewhere in the evidence.
Well, not saying that in a jury instruction
in probably 99% of the cases
isn't gonna create a substantial likelihood
of miscarriage of justice,
but I think your argument here is
that the jury might've just thought
that your client's story was pretty farfetched,
but that doesn't mean
that the Commonwealth witnesses should be credited
or that the case has been proved beyond a reasonable doubt.
And I thought in this particular case,
that was a pretty good argument, right?
-: Can I ask you a question about that, Mr. Baler?
After you accept that congratulations.
(laughing)
On that, you cite a case
that stands for sufficiency of evidence.
Do we have any cases that say that's a required instruction,
given all the other instructions
that deal with burdens of proof?
-: I did not come across a case that said that.
However, it is in the model jury instructions.
-: It's in a district court instruction, right?
Not in the superior court so-called model instructions.
It's in a district court one.
-: It seems to me the instruction,
this is the instruction that was used by the trial judge.
I mean, it tracks that model instruction.
-: Right.
Have we ever said that judge errs because they don't fall?
I think we've said the opposite.
If they're tracking along the model instruction,
other than the homicide instructions, of course,
that we haven't adopted,
if the person deviates from the model instructions,
albeit the district court ones in this case,
it's not error as long as the proper legal principles
are conveyed to the jury.
Correct?
-: True, yes.
But we contend
that without that final part of the instruction,
it allowed the jury to base their verdict
just on speculation.
They said that they were told
that they had to resolve conflicts
and determine where the truth lies
and that they could disbelieve witnesses,
so that may well have left the jury with the impression
that they had to resolve conflicts
and if there was no evidence on the other side,
then that's the resolution.
They should believe whatever
when there's no evidence on the other side
-: But ultimately, there was an instruction
that they had to find the defendant's guilt
beyond a reasonable doubt, right?
-: Right.
-: And that they speculate, engage, and surmise,
et cetera, correct?
-: Right.
But we contend that this,
the jury wouldn't have necessarily related
to the beyond a reasonable doubt
because they're saying on the first level,
if there's a conflict,
it has to be resolved by the jury.
And they can disbelieve the witnesses.
Well, the next part of the instruction would have said
disbelief isn't evidence that something occurred.
And without that, we contend that the jury
could just weigh the evidence
and if there wasn't any on the other side,
then they may well have credited
because that's what they weighed.
-: The errors by the trial judge
on the state of mind testimony,
it sort of gets to an issue that permeates this whole case
that I mentioned before.
It's the DNA of your client under the victim's fingernails.
And how do you address why that error caused prejudice?
Because I think there was an objection there,
wasn't there?
That's preserved, isn't it?
-: There was a request for mental impairment.
And the judge said that,
is this the one that we're talking about?
-: No, I'm not talking about the intoxication instruction.
I'm talking about the error that the judge made
that the Commonwealth concedes
on the state of mind hearsay.
-: Oh yes, okay.
-: And I'm asking you, that was preserved, wasn't it?
-: Yes.
The prejudice is that this was the only evidence
that would have gone to Guzman's state of mind
during the alleged attack that Martinez testified about.
-: Well, that's what I wanted to get at.
How could that be?
Martinez basically says he's got no clothes on
or something like that except for socks.
And he comments about,
he feels like somebody who's, I don't know,
gone into apartment of a husband and wife
and gets caught.
And then he testifies
that Guzman's gonna take the victim to the hospital.
And you're not talking about some other witness.
It's the defendant testifying to the hearsay.
Well, would've testified to the state of mind,
but the defendant testifies to the conclusion,
so you don't lose any weight there.
How can that create prejudice?
-: Because Martinez is just saying what he believes.
He's saying that he thought that Guzman was jealous
and so on,
but these are statements actually from Guzman
showing what Guzman's state of mind was.
So we had the jury heard this,
they may well have concluded that that Guzman had motive
and he was trying to cover it up
by saying that he would take the decedent to the hospital.
And of course, she never was.
Beyond that,
I'd like to talk about the mental impairment instruction.
My reading that Commonwealth also concedes
that lack of the mental impairment instruction was an error,
but argues that it was harmless.
The trial counsel asked for mental impairment instruction
and the trial judge said that he would give them.
And he did give them
in terms of the prongs of intent,
but he did not give it relating to the (indistinct) factors.
And this court has found that mental impairment
should be considered by the jury
as part of its look at (indistinct) factors.
-: Does it matter
when you have that many stab wounds, Mr. Baler?
On prejudice.
-: No, because it comes out if he was mentally impaired,
regardless of of what the wounds might be.
-: Mental impairment only goes
to two of the (indistinct) factors, right?
-: Well, I believe that the jury
looks at all of them together,
and that has to find that at least one was present.
So we contend that that, right.
Okay, so even if it did,
if, for example, the one relating to his intent
to do harm or whatever the prong was,
yeah, so the jury could have come back
on just that one prong.
They don't have to come back
on the number of wounds or anything.
They look at each one and only have to find one.
So even if the mental impairment
only bore on one of the prongs,
the factors of (indistinct),
that would be enough for an error that that was harmful.
As I mentioned before,
the evidence in this case just relied on the DNA.
And we contend that if this evidence was sufficient,
at least this is a case for a 33E determination.
And again, Mr. Martinez wasn't implicated
for 10 years after this incident.
And therefore, a lot of possible--
-: Even in the face of a brutal and heinous stabbing,
it's 33E?
-: Well, looking at the evidence
and the strength of the evidence
in light of these other alleged errors,
we contend that, yes, there is a 33E claim here.
It's not a question of the number of wounds.
It's a question of whether or not he was the one
who actually did the stabbing.
-: It's not just the defendant's testimony
puts him in the apartment at the time of the killing.
And he doesn't just have the blood on him
when he allegedly gets between
the alleged third party culprit and the victim,
but again, I'm sorry to say this again,
the blood's under his fingernails.
-: Right.
Well, he also testified that he was bleeding
while he was injecting heroin
and that the decedent came and helped him clean up.
So it may well have been deposited then.
But also that he was injured during the fight
between Guzman and Poente.
So his blood could have been deposited
for any number of reasons.
-: Thank you, Mr. Baler.
Jeffrey: Thank you.
-: Mr. Lynch.
-: Good morning.
May it please the court.
I'm Travis Lynch,
Assistant District Attorney on behalf of the Commonwealth.
Just to save a bit of time on research in the future
regarding the credibility instruction,
I apologize for not putting this in the brief.
I didn't have space
and it seemed pretty clear
that there's no substantial likelihood
of a miscarriage of justice,
but just for your.
It seems as though the district court
traces that instruction back to Commonwealth v. Swartz.
And the cite for that is 343 Mass. 709.
And I think someone might've hinted earlier
that that idea of discrediting a witness
is not evidence of the contrary.
It might be a sufficiency claim.
And in Swartz, this court uses that language
in the context of discussing a sufficiency challenge.
It doesn't seem to be an instruction,
but the district court treats it as an instruction,
or it did for a period of time.
I believe that a more recent edition
of the district court model jury instructions
doesn't have that language in it anymore.
In any event,
as it has been suggested by other justices
earlier during this argument,
there's no substantial likelihood
of a miscarriage of justice
because the jury were told
the entire burden is on the Commonwealth.
And they were told
don't speculate about whether the defendant's guilty.
So, they wouldn't have taken the absence of that instruction
to allow them to convict the defendant
just because they didn't believe him.
With respect to the voluntary intoxication instruction
just to stay on the instructional issues,
there's no evidence that the defendant was intoxicated.
The only evidence that he had any heroin comes from him
when he says that he was testing the heroin,
but it seems as though it was a botched heroin injection
because he couldn't find the vein,
and then he injected a,
I take his testimony to be he injected a small amount
and he felt the burning sensation,
but he doesn't even say that he was high or anything
or that he was affected other than the pain.
So there's no evidence of impairment on this record.
And the Commonwealth's position is that the instruction
shouldn't have been given in the first place.
So there's no substantial likelihood
of a miscarriage of justice
because this aspect of the instruction was wrong
because there's no evidence of intoxication.
The defendant got more than what he was entitled to
in the first place on that issue.
And also, the defendant's defense
in this case was third-party culprit,
not diminished capacity.
And I understand that the defendant
might be trying to ride two horses
in the battle at once now.
And I think he's trying to do that on appeal.
And I understand that,
but there's just no evidence that he was intoxicated,
so the error in the instruction,
again, on an unpreserved claim,
does not give a basis to reverse the conviction.
To address the other issue
that the defendant discusses in the reply brief
relating to the excluded evidence of certain things
that the alleged third-party culprit said.
I think various justices have pointed out
why there's no prejudice
with respect to the defendant wanting to say
that Alexei was accusing the third-party culprit of,
or sorry,
that the third-party culprit
was accusing the victim of infidelity
because the defendant said he felt awkward.
He said he was wearing his bootie socks
while the victim was holding his arm.
He said earlier, "I shouldn't have been there.
I felt like I just got caught
by someone's husband with my wife."
Those record cites are all on the brief.
And at various other times,
he says that Alexei is angry at the victim.
He says that there's animosity.
And then later during cross examination at Volume 7131,
the defendant says that Alexei was angry about money
because there was also an aspect
of the defendant feeling awkward
based upon the fact that Alexei was his drug dealer.
So again, hearing the exact words
that the third-party culprit addressed to the victim
at some point during this meeting
does not help the defendant.
Where the overall gist of it came through
that Alexei was angry.
And again, as Justice Lowy
kept astutely pointing out,
the defendant's DNA is under the victim's fingernails.
The other point was that Alexei Guzman,
the statement by Guzman that
I'll take her to the hospital,
that came in at Volume Seven, page 131, line 22.
The defendant says,
"He said he was bringing her to the hospital."
So there's no error on,
or there's sorry,
there's no prejudicial error
from that being excluded on the defendant's direct testimony
when it came in on cross.
-: Mr. Lynch, if we could go to
what might be Mr. Baler's main point though,
and specifically about the Dominican brothers.
Obviously, the third-party culprit evidence,
if it satisfies everything else,
has some relevance.
And Mr. Baler says that the substantial connecting links
and the similarity of the scar,
Ms. Vega and other witnesses seen two Hispanic males
leaving the house about noon on the day of the murder.
You've got the victim's boyfriend, Mr. Colon,
involved in a home invasion or attack
on one of the Dominican brothers
and actually involved in torturing him.
And so why doesn't that satisfy third-party culprit?
-: It doesn't satisfy third-party culprit
because, well,
what the police actually find inside of.
I think it's just important to point out
the Chicopee incident,
the police are responding to juveniles
kicking in a door on a house.
And then Colon happens to be parked outside of the house
that the police are responding to.
No one actually puts Colon in that house.
And the inference that the defendant would draw
is that the resident of the house
who was the victim of breaking and entering
or something was,
I believe it was Julio.
But again, the police don't find any evidence
that there was torture going on in that apartment.
They don't find blood or anything.
They don't even find anyone inside of the apartment.
So, I would just say that it's speculative to say
that the incident in Chicopee
that's the subject of the various police reports,
I mean, there's very little to connect that with this case
because we don't even find the resident of the apartment.
We don't find the victim of the breaking and entering.
And also, just to go back to the other point that was made.
A cut to the face and a gunshot wound to the leg,
which is what Colon said he suffered
at the hands of the Dominican brothers
somewhere in Santo Domingo while he was deported there
is not at all similar to 32 sharp force injuries
because one, there's a shooting,
which is completely different.
And two, as I understood what Colon said,
he only got cut once in the face.
And here, there's a lot of stab wounds.
And also, the other point that I would make
is attacking someone with a knife is unfortunately
not a very distinctive manner of attacking people.
So it's not similar and stabbing is not distinctive.
So that's my attempt to answer your question.
And also at the end of the day,
as we're going to keep coming back to,
the defendant's DNA is under her fingernails.
His blood is in the sink.
His blood is on the discarded clothing.
And the jury heard and rejected
a non-speculative third-party culprit defense
by the defendant, of course,
but nevertheless,
they heard and rejected a third-party culprit defense.
And I don't think
that they would have accepted this one either.
And I think we can say that beyond reasonable doubt.
So again, there's no error,
but even if there were,
it doesn't make a difference
on the specific facts of this case.
And unless there are any further questions.
-: Yeah, just one question perhaps.
Travis: Sure.
-: What do you say about error
on the instruction regarding diminished capacity
and atrocity and cruelty?
-: Oh, I think I talked about that earlier,
but just to reiterate.
So, the defendant's defense here
is that he didn't kill the victim.
So, an instruction that's only relevant,
the diminished capacity defense only is important
where the defendant is saying, yes, I did the act,
but I didn't have intent
or it wasn't extremely atrocious and cruel.
It's not his defense that he has diminished capacity.
So that's one reason why there's no substantial likelihood
of a miscarriage of justice.
The other reason is that the defendant
wasn't entitled to the instruction in the first place
because there's no evidence that he was intoxicated,
that he had diminished capacity.
(indistinct)
-: I appreciate that.
Any further questions of Mr. Lynch?
Thank you, Mr. Lynch.
Thank you, counsel.
-: Thank you.