Com. v. Bray

• Decision Date: 01 May 1985
• Citation: 477 N.E.2d 596,19 Mass.App.Ct. 751
• Parties: COMMONWEALTH v. Kevin BRAY.
• Court: Appeals Court of Massachusetts

Page 596

477 N.E.2d 596

19 Mass.App.Ct. 751

COMMONWEALTH v. Kevin BRAY.

Appeals Court of Massachusetts Middlesex.

Argued Dec. 19, 1984.

Decided May 1, 1985.

Barry P. Wilson, Boston, (Linda H. Morton, Boston, with him), for defendant.

Karen J. Kepler, Asst. Dist. Atty., for the Commonwealth.

Before SMITH, KAPLAN and WARNER, JJ.

KAPLAN, Justice.

Upon indictments for first degree murder and two related charges of assault and battery by means of a dangerous weapon, to wit, a baseball bat, the defendant Bray after a lengthy trial was convicted of murder in the second degree and of both related charges. ¹ The trial, we hold, was fair although not perfect, and the judgments will be affirmed.

1. Narrative. Leaving some details for later points, we recount the facts as the jury could have found them.

The victim, twenty-two year old Robert Ryan, was at a party in Malden on Saturday night, August 14, 1982. The party had been noisy and alcoholic; the police came shortly after midnight to quiet it. Between 12:30 and 1:00 A.M. the victim left in the company of his friends Robert Madden (aged 17) and Keith Moscone (18). Madden had had four or five beers, Moscone ten. The evidence did not disclose whether the victim had been drinking. Madden drove his mother's 1977 Buick Electra automobile. The three went to Everett to visit Madden's girlfriend, planning to return thereafter to the party. On their way back from the visit, they passed by the corner of Cherry and Ferry Streets, Everett, a hangout for young people.

Assembled there, standing on the sidewalk by a parked car near a street lamp, were the defendant Bray (22) and his friends Joe Rossi (23), Frank Russell (22), John O'Connor (22), and, seated in the parked Audi car belonging to her, Delores Ross (20), Rossi's girlfriend. All were from Everett.

The young men just named, excepting the defendant, together with Ross and O'Connor's sister Tracy, ² had met earlier in the evening and gone out in Ross's car, stopping at a number of bars and a liquor store. ³ The defendant had spied the group in the car around 9:00 P.M. as he was walking down Ferry Street. He signalled them to stop; they saw him but drove on. When, between 1:00 and 1:30 A.M., the defendant walked to the corner of Cherry and Ferry and encountered them, he displayed anger because they had not stopped for him, called them "scum," and yelled at them despite O'Connor's explanation that the Audi car had been full. The defendant had been drinking. He shoved O'Connor in the chest. Rossi and Russell had to step in to separate the two. It was at this point that the Electra drove up.

Madden, thinking there might be friends of his at the corner, parked the Electra on the other side of the street from the Audi, and all three alighted from the car and walked toward the Everett group. In fact no one of either group knew any of the other. Madden asked whether anyone had seen two friends of his, Nooter and Leo by name. It appears that these fellows were known to one or another of the Everett group, but the answer Madden got from the defendant was: "Get the fuck out of here before we fucking kill ya." ⁴ Someone--either Rossi or Russell--also said, "They're not here. Move along. Screw." Madden said, "Who the hell are you? No one talks to me like that." During this exchange the victim stood either on the sidewalk near Madden or leaning against the Audi. Madden retreated to his car and drew out one or two baseball bats (witnesses differed). ⁵ Ross got out of the car when she saw Madden return. There were more words between Madden and the Everett men.

The defendant wrested one of the bats from Madden. O'Connor grabbed at the other bat, but Madden held on; the two were locked on the bat and their struggle carried them into the street. Russell and Rossi set upon Madden with blows to the face. Madden yelled to the victim for help but there was no response. O'Connor joined in beating Madden. Madden lost his grip on the bat, staggered back, and apparently blacked out. Moscone, standing a few paces from Madden, shouted at the victim that they should get out of there, also without response.

Only Ross and Rossi testified to having seen what happened to the victim. ⁶ According to them, the defendant (six feet, two inches tall, 210 pounds), holding a bat, squared off against the victim (taller but leaner by 20 pounds than the defendant). This was on the sidewalk a few feet from the Audi. The men were four or five feet apart. About a foot behind the victim and running the length of the sidewalk was a high cyclone fence. The victim Ryan stood with his arms at his sides, making no move toward the defendant. It was then Rossi noticed the victim was holding a tire iron in his right hand.

The defendant and the victim stood facing each other for several seconds. Then, according to both Rossi and Ross, the defendant swung the bat and caught the victim behind his left kneecap. Now Ross, too, noticed the tire iron. ⁷ As the victim began to raise the iron, the defendant raised the bat and drew it back just below his shoulder. When the tire iron reached a point between the victim's waist and shoulder, the defendant took an overhand swing. The bat struck the left side of the victim's head just above the ear. Ross screamed as she heard the sound of impact. The victim's knees buckled. He took no steps, but pitched face forward.

Rossi told Ross to get out of there, and she got into her car. Moscone and Russell were fighting on the ground in front of that car, and Rossi headed there to help Russell. Ross backed her car and, as she was driving away, the defendant jumped into the back seat and told her to take him to Glendale Park, a few minutes away. Rossi and Russell together overcame Moscone and left him "out cold," lying face down on the street.

The victim got back on his feet and made his way toward the Electra. Russell testified that as he passed by, the victim threw a punch at him and said, "We're going to come back and get yas." Russell blocked the punch and hit the victim with his right fist just above the left eyebrow with a force about 75 percent of his maximum. The victim began to crumple. Russell continued with four or five more punches to the victim's upper body. The victim leaned against the car, crouching, while he took Russell's punches. He said, "Don't hit me no more." Russell stopped and walked away.

O'Connor, meanwhile, had dragged Moscone over to the Electra. The victim helped O'Connor get Moscone into the car. He took the driver's seat. O'Connor told him to go. The victim said, "Don't hit us no more." O'Connor left. Not having the car keys--they were with Madden--the victim could not drive off. After several minutes a police officer, Robert Colasanti, appeared, led there by Madden, who had managed to stumble down Ferry Street to the officer's cruiser. The victim now appeared dazed. His speech was slurred. He had a gash, with swelling, over one eye. Officer Colasanti used his cruiser to take the three--Madden, the victim, and the still groggy Moscone--to Whidden Memorial Hospital. There Moscone came to and all were cleaned up. The three left with Madden at the wheel of the Electra, which another officer had driven to the hospital. The victim was left off at his house. It was around 3:00 A.M.

About 9:30 A.M., the victim's sister Patricia came into his room. He was sitting in bed, bent over. He was wearing clothes of the night before. His shirt was bloodied. His face was badly swollen, his eyes glassy, one blackened. The family took him to New England Memorial Hospital, reaching there about 11:00 A.M. By then he was unresponsive. Emergency brain surgery was performed, but he lapsed into coma and required a respirator. After fifteen days on the machine, he died.

The attending neurosurgeon, Dr. Robert Valin, and a forensic pathologist, Dr. George Katsas, attributed death to brain swelling and subdural hematoma resulting from severe head trauma. Defense counsel attempted on cross-examination to show that the cause might have been the blow delivered by Russell, but the medical evidence pointed to the blow with the bat.

2. Rulings in course of trial. (a) Was it error to admit over defense objection John O'Connor's testimony that, immediately before the Malden car arrived, the defendant, "somewhat intoxicated," had an altercation with O'Connor and shoved him in the chest? The shoving episode could not be rightly admitted to show that the defendant had a violent character or a general propensity for violence. See Commonwealth v. Hoffer, 375 Mass. 369, 372, 377 N.E.2d 685 (1978); 1A Wigmore, Evidence § 54.1, at 1152 (Tillers rev. 1983). On the other hand, it could be introduced as tending to prove the defendant's condition and frame of mind as, in a virtual continuum, he passed from going after O'Connor to provoking the brawl with the Malden youths by his words and seizing the bat. The specific quo animo bore upon an essential of certain of the crimes charged. See Commonwealth v. Connor, 392 Mass. 838, 852, 467 N.E.2d 1340 (1984). Cf. Commonwealth v. Chalifoux, 362 Mass. 811, 816, 291 N.E.2d 635 (1973). The case is easily distinguished from those where "prior bad acts" have no or very minor probative relation to any issue of fact. See Commonwealth v. Spare, 353 Mass. 263, 267, 230 N.E.2d 798 (1967); Commonwealth v. Parker, 12 Mass.App. 955, 956, 426 N.E.2d 1179 (1981); Commonwealth v. Yelle, 19 Mass.App. 465, 471-472, 475 N.E.2d 427 (1985). Nor is there any serious problem here of weighing possible unfair prejudice against legitimate probative value in deciding the question of admissibility, as in Commonwealth v. Blow, 362 Mass. 196, 200-201, 285 N.E.2d 400 (1972); Commonwealth v. Gallison, 383 Mass. 659, 672-674, 421 N.E.2d 757 (1981).

(b) On direct examination the witness John O'Connor testified that, immediately after the fight, the defendant and the other Everett youths gathered at Glendale Park. O'Connor at...