On the afternoon of March 8, 2004, the victim was found stabbed to death in the bathtub of her apartment. Her boy friend, Yoderny Pena, was indicted for her murder. After a five-day jury trial, during which Pena claimed mental impairment, Pena was found guilty of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty. Represented by new counsel, Pena filed a motion for a new trial alleging ineffective assistance of counsel, which was denied. He appealed from the denial of the motion for a new trial, which was consolidated with his direct appeal.
Pena argues on appeal that he is entitled to a new trial because (1) seated jurors were permitted to mingle with the rest of the venire during a short break from the empanelment proceedings; (2) the inflammatory quality of two particular autopsy photographs outweighed their probative value; (3) the testimony of a medical examiner who neither performed nor attended the victim’s autopsy violated Pena’s right to confrontation and Massachusetts evidence law; (4) the judge improperly struck a portion of defense counsel’s closing argument; (5) the prosecutor improperly commented on Pena’s failure to testify during closing argument; and (6) trial counsel was ineffective for failing adequately to make a record and object to the judge’s striking of a portion of Pena’s psychiatric expert’s testimony. We affirm the conviction and decline to grant relief under G. L. c. 278, § 33E.
The jury could have found the following facts. In March, 2004, the victim was living with her younger brothers and her three children in the second-floor apartment at 43 Wilcock Street in the Mattapan section of Boston. Her boy friend, Pena, had also been living there for the previous month or two. At approximately 11:45 A.M. on March 8, 2004, the victim and her friend Maria Mercedes arrived at Mercedes’s home in the Roslindale section of Boston after working out together at a gym. The victim stayed very briefly at Mercedes’s residence, and then left to go home and shower to prepare for an appointment that she had at approximately 1:30 P.M.
Amika Williams, the victim’s downstairs neighbor, returned home from her job at approximately 11:30 A.M. that morning.
Williams parked her vehicle at 43 Wilcock Street behind Pena’s green Ford Taurus automobile. Some time after Williams entered her first-floor apartment, she heard arguing from the second-floor apartment. She heard voices, followed by crying, and then silence. Williams dozed off in her bedroom for a while, and when she arose at approximately 1:30 P.M. to check her mailbox she saw the victim’s brother, Stephen, returning home from school.
As Stephen approached 43 Wilcock Street, he observed the victim’s and Pena’s cars parked on the street. Pena was standing on the porch of 43 Wilcock Street. When Pena noticed Stephen, he covered his face with the collar of his jacket, slouched down, ran to his car, and drove off. Stephen then entered the second-floor apartment and found the victim, unresponsive, lying naked and pale in the bathroom. There was blood on the bathroom walls and floor. Stephen dialed 911.
Lieutenant Gilbert Quinchia of the Boston fire department responded to the scene shortly after 1:30 P.M. He observed the victim’s naked body laying face-up in a pool of blood in the bathtub. She had several stab wounds about her neck and chest. Lieutenant Quinchia further observed blood spatter about the walls and neatly folded clothes on the seat of the toilet.
Dr. Marie Cannon from the medical examiner’s office conducted an autopsy on the body on March 12, 2004, and prepared an autopsy report shortly thereafter. Dr. Cannon was on leave from the medical examiner’s office at the time of trial, so the chief medical examiner, Dr. Mark Flomenbaum, testified. Dr. Flomenbaum reviewed the file maintained by the medical examiner’s office regarding the victim’s death. The file contained the autopsy report, laboratory reports, photographs, and additional information. Based on his review of the file, Dr. Flomenbaum opined that the victim died as a result of multiple cut and stab wounds, fifty-one in all, causing her to “bleed out.” Seven or eight of the stab wounds also could have been independently fatal.
Dr. Flomenbaum testified that most of the fatal injuries were located in the chest area, penetrating the lungs. Two stab wounds entered through the chest and through the diaphragm, one further entering the victim’s stomach. The injuries to her lungs would have caused bleeding and would have compromised her ability to breathe. The victim also received two injuries to her neck: a superficial one and one cut through her trachea, which exposed the airway to the outside. Dr. Flomenbaum opined that the cut through the victim’s airway itself would have only minimally affected her ability to breathe, but blood could have flowed into her lungs because the cut extended into the blood vessels. More importantly, the cut extended into the nerves that control the mechanism that switches from the air to the food tube, thereby significantly compromising the victim’s ability to breathe, and her ability to speak or scream would have been reduced to what might have been a deep gurgling sound.
Looking at autopsy photographs, Dr. Flomenbaum testified that many of the stab wounds showed great variability in direction, depth of penetration, and orientation of the knife, indicating that the knife was pointed and held in different directions while the injuries were inflicted. Dr. Flomenbaum opined that the variability of the victim’s injuries implied that there was a lot of relative movement between the victim and the knife, and that a large amount of time passed between the injuries. On cross-examination, Dr. Flomenbaum estimated that it would have taken somewhere between two and ten minutes to inflict all of the injuries. Some injuries suggested that the victim tried to deflect the knife, thus indicating that she was conscious through a large portion of the injuries, possibly all of them.
Police officers found red stains consistent with human palm prints on the bathroom door and the windowsill above the bathtub, and several (bare) footprints on the floor tiles. John Black of the South Carolina State law enforcement division crime laboratory compared the two latent palm prints and two latent footprints with known prints from Pena and concluded that the latent prints matched Pena’s.
Several of the victim’s family members and her neighbor Williams testified that they never saw Pena intoxicated or using drugs while he was living with the victim. The police observed no signs of cocaine use or empty alcohol containers during the search of the apartment, and did not find any evidence of cocaine in Pena’s green Ford Taurus or in Pena’s other car that the police searched.
Pena did not testify at trial. Pena’s defense counsel acknowledged that Pena had killed the victim, and the defense proceeded under the theory that Pena had done so while mentally impaired and unable to form the mental state required for murder in the first degree. The only witness called by the defense was Dr. Rebecca Brendel, a psychiatrist from Massachusetts General Hospital, who testified to her opinion of Pena’s mental status on the day of the victim’s death. Dr. Brendel reviewed Pena’s medical records reaching back to 1996, when Pena first sought psychiatric treatment in the Dominican Republic, as well as records from the Boston Medical Center, Holy Family Hospital, and Bridgewater State Hospital, dating after 2002 when Pena moved to the United States. Dr. Brendel also reviewed reports prepared by a Dr. Presskreischer, a psychologist retained in this case to gather Pena’s mental health history, and by the Commonwealth’s expert, a Dr. Fife. Finally, Dr. Brendel spoke to Pena’s sister and interviewed Pena while he was incarcerated.
According to Dr. Brendel, Pena’s history of mental illness began when he was eighteen years old, and included changes in his mood; periods of severe and profound depression and agitation; a clearly documented history of psychotic symptoms, affecting his ability to think clearly and appreciate reality; paranoia, suicidal thoughts, and fears that others might harm him; and a documented history of long-term substance abuse. The onset of Pena’s psychiatric symptoms coincided with the beginning of his drug abuse.
Beginning in 1996 Pena sought psychiatric help in the Dominican Republic, where he was treated for symptoms of severe depression and psychosis, and was diagnosed with bipolar disorder with psychotic features. One of Pena’s doctors in the Dominican Republic noted that at certain times Pena’s course was characterized by alcohol and drug use. Dr. Presskreischer’s report, prepared after the murder, also reflected that Pena’s doctors in the Dominican Republic indicated that Pena was psychotic, experienced hallucinations, and thought he was being watched, pursued, and persecuted. Pena himself told Dr. Brendel that he attempted suicide three times in the Dominican Republic. Further, a note from the Suffolk County sheriff’s department indicated that Pena had attempted suicide while incarcerated in October, 2004. In June, 1999, Pena was hospitalized in the Dominican Republic and treated with electroconvulsive therapy and antipsychotic medications. A second doctor who treated Pena in the Dominican Republic believed that Pena was severely mentally ill. This doctor continued to prescribe medications to treat Pena’s mental illness until December, 2003, after Pena had moved to the United States in 2002.
Dr. Brendel testified that Pena told her that he continued to use drugs after he came to the United States. She explained that alcohol is a potent depressant and that individuals suffering from depression commonly become more depressed when they are abusing alcohol. Likewise, Dr. Brendel explained, cocaine can cause people with symptoms like Pena’s to become sad and more paranoid and may affect memory and sleep.
Dr. Brendel testified further that in the spring of 2003 (one year before the murder), Pena was evaluated by a psychiatrist at Boston Medical Center, who diagnosed him with recurrent major depression and prescribed several medications to treat depression and acute symptoms of anxiety. At his sister’s urging, Pena also saw a social worker at Boston Medical Center on March 3, 2004, only five days before the murder. The social worker was unable to evaluate Pena fully because no interpreter was available, but noted that Pena was suffering from depressive symptoms and had poor memory and concentration, and that his symptoms required further evaluation. Pena’s sister told Dr. Brendel that Pena went into a depressive state several months before the murder, and that he had been acting strangely in the weeks before the murder. She specifically recalled one incident when Pena told her that he thought people were following him and later seemed disoriented. Dr. Brendel explained to the jury that people suffering from mental illness, like Pena, will typically experience mood swings and will vary between periods of acute mental illness and periods without any symptoms at all.
Pena told Dr. Brendel that on the day of the murder he was severely depressed, extremely agitated, and acutely suicidal; that he had not slept for three nights; and that he had been using cocaine, marijuana, and alcohol. On the morning of the murder he went to the second-floor apartment of 43 Wilcock Street with the intention of jumping from the apartment to kill himself, and that he had gone to the kitchen to get a knife to kill himself. Pena could not explain to Dr. Brendel why he had not followed through with that plan, but he showed her scars that he reportedly inflicted on himself with a knife. Photographs of Pena’s wounds were introduced in evidence and they depicted scars from several injuries to his neck, abdomen, and arm. Pena told Dr. Brendel that he had also hurt the victim that day, but he was unable to explain why he had done so. Pena claimed that his mind had gone blank, causing him to have very little memory of what had occurred, that he had a brief recollection of cutting himself and the victim, but that he never had any plans to hurt her, and only wanted to hurt himself. Pena said that he loved the victim very much and that if he had been thinking clearly that this day never could have happened. Pena reported still hoping that she was alive after the incident.
On the basis of all of this information, Dr. Brendel concluded that Pena suffered from a chronic and severe mental illness on the day of the killing; that Pena was suffering from depression and was preoccupied with suicidal thoughts; and that he had difficulty remembering what happened because of a combination of his mental illness and substance abuse. She further opined that the information she obtained from Pena cast doubt on whether he was capable of deliberating in a cool and reflective manner, and whether he was able to form a coherent plan to kill himself or his girl friend. Dr. Brendel expressed serious doubt whether Pena could form the intent required for murder in the first degree on the day of the killing.
Dr. Brendel also testified that Pena’s treatment for symptoms of mental illness continued after the killing. Five months after the murder, between August 3 and August 10, 2004, Pena was hospitalized at Holy Family Hospital. In addition, after he surrendered to the police on August 27, 2004, Pena was evaluated at Bridgewater State Hospital, where he remained until September 24, 2004. There Pena was found competent to stand trial, but was not evaluated as to his criminal responsibility. On cross-examination, Dr. Brendel admitted that the report from Bridgewater State Hospital also indicated a high suspicion that Pena was feigning memory problems. She further admitted that there was no indication in the record that Pena experienced any symptoms of alcohol or drug abuse withdrawal while at Bridgewater State Hospital…
Conclusion. We have examined the record pursuant to G. L. c. 278, § 33E, to determine whether there is any basis to set aside or reduce the verdict of murder in the first degree, regardless of whether such grounds were raised on appeal. We conclude that the evidence supported Pena’s conviction of murder in the first degree and that there is no basis on which to reduce that verdict or order a new trial.