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SJC-12557

              RAYMOND COLLAZO   vs.   COMMONWEALTH.


                        January 9, 2020.


Supreme Judicial Court, Superintendence of inferior courts.
     Homicide. Constitutional Law, Double jeopardy. Practice,
     Criminal, Mistrial, Double jeopardy.



     Raymond Collazo appeals from a judgment of the county
court denying his petition for relief under G. L. c. 211, § 3.
Collazo was indicted on charges of murder in the first degree
and other offenses arising from the death of his five month old
infant son James (a pseudonym). After a jury trial in the
Superior Court, the jury were unable to reach a unanimous
verdict on the murder charge.1 The trial judge declared a
mistrial. Collazo unsuccessfully moved to dismiss the murder
indictment and for a required finding of not guilty, arguing
that a retrial was barred by double jeopardy principles because
the Commonwealth failed to present sufficient evidence to
warrant a conviction. His G. L. c. 211, § 3, petition sought
relief from the denial of that motion. We affirm the judgment.

     "So long as the Commonwealth 'presents evidence legally
sufficient to convict' at the first trial, double jeopardy will

    1  At the close of the Commonwealth's case, the trial judge
entered a required finding of not guilty on so much of the
indictment as charged murder in the first degree based on
deliberate premeditation, leaving it for the jury to consider
whether Collazo committed murder in the first degree with extreme
atrocity or cruelty. Other charges were dismissed at the
Commonwealth's request. In addition, the jury acquitted Collazo
of one indictment charging assault and battery.
not generally 'bar retrial after a mistrial [is] declared
because of a "hung jury."'" Commonwealth v. Phim, 462 Mass.
470, 473 (2012), quoting Berry v. Commonwealth, 393 Mass. 793,
794, 798-799 (1985). "In making a determination whether the
Commonwealth presented sufficient evidence to warrant a finding
of guilt, '[the] question is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.'" Berry, supra at 794,
quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
The trial evidence meets this standard.

     Collazo argues that double jeopardy principles bar retrial
for two reasons: first, because the evidence was insufficient
to establish beyond a reasonable doubt that James died as a
result of inflicted injuries, rather than illness or some other
cause, and second, because, assuming James did die from
inflicted injuries, the evidence was in equipoise as to whether
the defendant or James's mother was the perpetrator. See
Berry, 393 Mass. at 796, citing Commonwealth v. Carter, 306
Mass. 141, 147 (1940) ("When the evidence tends equally to
sustain either of two inconsistent propositions, neither of them
can be said to have been established by legitimate proof").
Neither contention has merit.

     As to the cause of death, the Commonwealth presented ample
expert testimony to establish that James died due to injuries
that were inflicted on him. The medical examiner who performed
James's autopsy testified to her findings, which included a
blood clot on James's brain that was not old enough to have
formed a membrane and become adherent, bruising on the inside
of his scalp, and fractures to his extremities. The witness
also gave her opinion, based on these findings, that James died
as a result of abusive head trauma. Other experts testified
for the Commonwealth as well. For example, a pediatric
radiologist who examined James's bones and took high-detail
images of them testified that James had several fractures, some
of which showed evidence of healing and others that showed no
such signs, indicating that the fractures were of different
ages. One fracture was described as a "classic metaphyseal
lesion," which the radiologist testified is a type of fracture
strongly associated with child or infant abuse. Another
expert, a neuropathologist who examined James's brain,
testified to injuries that occurred due to lack of oxygen and
to acute hemorrhaging, including hemorrhaging in the junction
between the brain and the spinal cord. We need not belabor
all the testimony. To the extent that Collazo argues that his
own experts offered different opinions as to the cause of
death, the jury were free to discount those opinions or to
discredit them entirely.2 Viewed in the light most favorable
to the Commonwealth, the evidence was sufficient to warrant the
jury in finding that James died as a result of inflicted
injuries.

     As to the identity of the perpetrator, we disagree with
Collazo's argument that, as in Berry, 393 Mass. at 796, the
evidence, even when viewed in the best light for the
Commonwealth, equally supported two inconsistent propositions:
that Collazo himself inflicted the injuries, or that James's
mother did so. The evidence warranted a finding that James
suffered his fatal injuries between approximately 1 A.M., when
James's mother fed him, observed his condition to be normal,
and went back to sleep, and approximately 6:50 A.M., when
James was found unresponsive in his crib and emergency services
were called. The jury could have found that, throughout that
time period, Collazo was James's sole caretaker while James's
mother slept. In these circumstances, there was a clear basis
in the evidence for the jury to find that it was Collazo, not
James's mother, who was responsible for his death. The jury
were not left to speculate between two equally likely
propositions.

     Conclusion. Because the evidence was sufficient to
warrant a conviction of murder in the first degree based on
extreme atrocity or cruelty, double jeopardy principles do not
bar Collazo's retrial on that charge. The single justice
neither erred nor abused his discretion in denying relief.

                                   Judgment affirmed.


     David B. Hirsch for the petitioner.
     John A. Wendel, Assistant District Attorney, for the
Commonwealth.




    2  While we view the evidence in the light most favorable to
the prosecution, we recognize that the defendant offered, through
expert testimony, evidence that James died from natural causes,
based in part on evidence of pneumonia in his lungs at the time
of death. The defendant also raised questions about, inter alia,
the thoroughness of the original autopsy.
