Com. v. Andrews

Decision Date29 November 1988
Citation530 N.E.2d 1222,403 Mass. 441
PartiesCOMMONWEALTH v. Herbert ANDREWS, Jr. (and three companion cases 1 ).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Willie J. Davis, Boston, for Herbert Andrews, Jr.

Joseph F. Krowski, Brockton, for Thomas P. Cormier.

Mary Ellen O'Sullivan, Asst. Dist. Atty., for the Com.


LIACOS, Justice.

The defendants challenge their convictions of murder in the first degree after two trials, the first of which resulted in a mistrial because the jury could not reach any verdicts. The defendants assert that the second trial should have been barred by double jeopardy principles. Alternatively, the defendants seek a third trial because of claimed errors in the second trial. We reject the defendants' double jeopardy argument. We conclude that there was no reversible error in the second trial. Thus, we affirm their convictions.

We summarize the evidence put before the jury at the second trial. Additional facts pertinent to the various issues argued by the defendants will be set forth as those issues are considered. On October 8, 1984, Thomas Sylvester (Sylvester) and William O'Connor were shot and killed in the home of Carol Sylvester. Carol Sylvester testified as follows. 2 The defendant Herbert Andrews, Jr., had been living with Carol Sylvester's sister, Donna Bolinder, for about six months prior to the shootings. Carol Sylvester recently had been separated from Robert Sylvester, the victim's father. In late August, 1984, she had an intimate relationship with Andrews. She did not tell her sister of this until some time after the shootings. Andrews was interested in continuing a sexual relationship with Carol Sylvester, but she declined.

On October 2, 1984, six days before the shooting, Carol Sylvester slept with O'Connor, having been introduced to him by Sylvester the previous night. At that time, O'Connor and Sylvester enlisted her help to sell a quantity of marihuana. On October 3, Andrews telephoned Carol Sylvester repeatedly while she, Sylvester, O'Connor, and a woman friend were engaged in a card game. Sylvester intercepted two such telephone calls, argued with Andrews, and challenged him to meet and to bring his "cap pistol," if he wished. Bolinder, who was present with Andrews when he placed these calls, testified that Andrews threatened someone on the telephone, "I fight to win, I fight to kill. I'll blow your head off." Other witnesses for the Commonwealth testified that Andrews approached Carol Sylvester's house that night and destroyed the window of an automobile parked near the house by firing several bullets through it. Bolinder and Carol Sylvester testified that Andrews later had expressed surprise and disappointment that the automobile was not Sylvester's but instead was O'Connor's.

Bolinder testified that the next morning, October 4, Sylvester and O'Connor met Andrews in front of Bolinder's house. O'Connor stated to Andrews, "I have no beef with you, I just want my windshield fixed." Sylvester then said, "I have the beef with you, punk," and struck Andrews twice in the face, knocking him to the ground. The three men then entered the house and talked, while Bolinder was in the adjoining room. Shortly thereafter, a police cruiser arrived at her house, perhaps because a neighbor had telephoned the police. Andrews then entered her room and gave her a gun, which she knew to be his and which she knew to be empty. He also gave her three bullets. Bolinder testified that Andrews had asked her to load the gun and that she responded, "What are you, crazy, no one's getting shot in my house." The police did not enter Bolinder's home.

Bolinder testified that, after the police had departed, Sylvester and O'Connor arranged for the automobile to be repaired and told Andrews to pay $200 to them by the next day. Bolinder testified that Andrews later met with Thomas P. Cormier, who told Andrews to look at the injury to his face and to pay none of the $200.

Carol Sylvester testified that on October 6 the two defendants arrived at her mother's house, shouted at her, accused her of siding with Sylvester and O'Connor by informing them of Andrews' whereabouts, and reminded her that she had known the defendants for many years longer than she had known Sylvester and O'Connor. The defendants then threatened to kill her if she let anyone know "what was going on." These threats frightened her. Andrews also stated that Sylvester and O'Connor "are dead," and persuaded Carol Sylvester to telephone both victims and to lure them to her house the next day by stating that she had a buyer for some of their marihuana. On October 7, the defendants arrived at her house with two guns and some rope and told her that she was to let the victims into the house and slam the door, whereupon the defendants would tell her to go into the bedroom, and would then use the rope to bind the victims, take the victims outside, and shoot them. However, Sylvester and O'Connor did not appear at the appointed hour that night. The defendants left after agreeing to postpone the killings until the following day. Carol Sylvester later spent the night with O'Connor at his house, but there is no indication that she divulged the above-mentioned plan of the defendants to shoot him.

Carol Sylvester also testified that, on the morning of October 8, 1984, the day of the homicides, she gave Andrews directions to O'Connor's house over the telephone. Andrews, however, insisted that she lure the victims to her house, as previously planned. That evening, Andrews, Cormier, and John Feroli, a codefendant in the first trial, arrived at Carol Sylvester's house with a handgun, a rifle, a knife, and a baseball bat. After the victims entered the house, the defendants and Feroli accosted them. Carol Sylvester then went into the bedroom. She testified that she had heard O'Connor say, "Why are you doing this to me ... I didn't do anything to you," and heard Sylvester say, "It's cool, it's cool, you can take anything you want." She then heard Andrews say a few more words followed by shots and "gurgling noises." The three men left.

Shortly thereafter, Carol Sylvester telephoned the police. When the police arrived, she told them that three masked men had shot the victims. That same night, Andrews told Bolinder, according to her testimony, that he had killed the victims and would receive a life sentence if caught. Bolinder also testified that he had threatened to kill her or both of her children if she ever told anyone that he had killed the victims. Two days later, Andrews and Bolinder had an argument at her home, as a result of which Andrews slept in his automobile nearby, and Bolinder called the police. The officers spoke with Bolinder, observed Andrews in the vehicle, and searched him. They found a knife in his pocket. The officers then looked through the window of his automobile and observed and retrieved a shortened baseball bat with a plastic strip around the end. 3 The next morning Carol Sylvester told the police that the three men had not been masked but were in fact the defendants and Feroli, all of whom were arrested immediately. Carol Sylvester was taken into protective custody, as was her sister Bolinder, and, once she was assured of immunity, she told the police about her role in the alleged events.

The defendants claimed separate alibi defenses for the night of the shooting. Feroli defended in the first trial on the ground that his participation in the alleged events was minimal. Feroli's retrial was severed from the defendants' second trial. 4

1. Double jeopardy. The defendants assert that three aspects of the first trial should have barred the second trial. First, they claim that the judge erroneously refused to sever the trial of the former codefendant Feroli from their trial, despite Feroli's antagonistic defense. See Commonwealth v. Moran, 387 Mass. 644, 659, 442 N.E.2d 399 (1982). Second, the defendants claim that the trial judge made several erroneous and prejudicial evidentiary rulings. Third, they claim that shortly before trial a witness for the Commonwealth was placed in a cell with defendant Andrews in a calculated attempt by the Commonwealth to elicit threatening statements from Andrews.

The defendants do not claim any prejudice to the second trial as a result of the asserted infirmities in the first trial; and, as counsel for the defendant Andrews acknowledged in oral argument before this court, there could be no such prejudice shown on this record. The defendants also acknowledge that the first trial resulted in a mistrial because the jury could not reach any verdicts after several days of deliberation. 5 Prior to the second trial, the defendants filed motions to dismiss on double jeopardy grounds. These motions were denied. The defendants claim error, alleging that judicial and prosecutorial misconduct in the first trial led to a mistrial, and, hence, no second trial should have been permitted. 6

In United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976), the Supreme Court stated the fundamental precepts pertaining to claims of double jeopardy under the Fifth Amendment to the United States Constitution as follows:

"Underlying this constitutional safeguard is the belief that 'the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.' Green v. United States, 355 U.S. 184, 187-188 [78 S.Ct. 221, 223-224, 2 L.Ed.2d 199] [1957]."

Later, in the landmark case of Oregon v. Kennedy, 456 U.S. 667, 682-683, 102 S.Ct. 2083, 2092-2093, 72 L.Ed.2d 416 (1982), Justice Stevens,...

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