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Commonwealth v. Ramirez5/19/1998
Appeals Court
Suffolk.
April 8, 1998.
Self-Defense. Evidence, Intoxication. Practice, Criminal , Argument by prosecutor.
Indictments found and returned in the Superior Court Department on April 6, 1982.
The cases were tried before Robert W. Banks, J.
On April 6, 1982, a Suffolk County grand jury returned indictments charging the defendant with the murder of Eduardo Ortiz Sanchez, and with two counts of assault and battery on Lorenzo Sanchez by means of a dangerous weapon, to wit: a pan (count I) and a bottle (count II).
On August 4, 1982, the defendant failed to appear for a scheduled court date and was defaulted. On August 31, 1994, he was brought back to Suffolk County on a warrant and the default was removed. On October 30, 1995, the defendant was tried by a jury which, on November 7, 1995, found the defendant guilty of manslaughter on the murder indictment, and guilty on count II of the assault and battery by means of a dangerous weapon. He was found not guilty on count I of that indictment.
On appeal, the defendant raises two issues, namely: (1) the Judge committed error by refusing to allow defense counsel to question a police officer about the meaning of a breathalyzer test result; and (2) the prosecutor made an improper closing argument.
The Commonwealth introduced evidence that on February 13, 1982, the defendant and his brother, Arnaldo Ramirez (Arnaldo) visited the apartment of his former wife's aunt. They spent the evening watching a movie on television. Between 1:00 and 2:00 A.M., the wife's nephew, Eduardo Ortiz Sanchez (victim), and Lorenzo Sanchez (Sanchez) arrived at the apartment.
A fight broke out between the defendant and Sanchez, during which the defendant hit Sanchez on the head with a pot. The victim and Arnaldo joined in the fight. The fighting eventually stopped and the aunt asked all of the men to leave her apartment.
As the men began to leave, the fighting broke out again. The defendant took a large glass ketchup bottle from a cabinet and hit Sanchez over the head with it. The defendant then stepped outside the apartment and stood in the hallway holding the neck of the now broken bottle. The victim followed the defendant into the hallway; he was not holding anything in his hands. The defendant struck the victim with the broken bottle and the victim fell to the floor bleeding from the neck. The defendant dropped the bottle and left the apartment building. The police were called but the victim was dead when they arrived. The defendant was arrested but fled the jurisdiction.
When the Federal Bureau of Investigation arrested him some twelve years later, the defendant gave a statement about the 1982 killing. He stated that he had been drinking prior to the incident in question. When the victim and Sanchez arrived, he was sleeping but later awoke to discover the other men in the apartment. The defendant then told Sanchez that he wanted to go home but Sanchez told him that he would hit him if he left. When the defendant tried to leave, Sanchez struck him and they began fighting; the other men then joined in the affray. At one point, the defendant was told that Sanchez was trying to kill Arnaldo and he went to Arnaldo's aid. When he did so, the victim, who was holding a knife "or something similar," attacked the defendant, who grabbed a bottle, broke it against some stairs, and swung it at the victim's arm. The victim fell to the floor, bleeding from the neck, at which point the defendant left the apartment building.
At trial, the defendant testified that he had consumed some two or three six-packs of beer in the hour
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