Com. v. Brown

• Decision Date: 10 April 1985
• Citation: 394 Mass. 510,476 N.E.2d 580
• Parties: COMMONWEALTH v. Arthur W. BROWN (and five companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 580

476 N.E.2d 580

394 Mass. 510

COMMONWEALTH v. Arthur W. BROWN (and five companion cases ¹).

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 5, 1985.

Decided April 10, 1985.

Lawrence R. Glynn, Cambridge, for Kevin Roach.

Anthony M. Traini, Boston (Russell R. Weddell, Boston, with him), for Arthur W. Brown.

Jeffrey B. Abramson, Asst. Dist. Atty., for the Com.

Before HENNESSEY, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

NOLAN, Justice.

On May 6, 1982, a Middlesex County grand jury returned indictments charging each of the defendants, Arthur Brown and Kevin Roach, with murder in the first degree, armed robbery, and larceny of a motor vehicle. After a jury trial, both of the defendants were found guilty on all three charges. The trial judge sentenced each defendant to imprisonment for life on the murder conviction, a concurrent ten to fifteen year term on the armed robbery conviction, and a concurrent nine to ten year term on the larceny of a motor vehicle conviction. Each defendant appeals from these convictions. We find no reversible error or any reason to grant relief under G.L. c. 278, § 33E. Accordingly, we affirm the judgments.

On appeal, the defendant Roach claims error in that (1) the testimony of a Commonwealth witness concerning admissions by both codefendants was erroneously admitted in evidence because it constituted inadmissible hearsay and violated his right under the Sixth Amendment to the United States Constitution to confront witnesses against him when Brown did not testify; and (2) the judge erred in instructing the jury as to when a joint venture begins and ends. The defendant Brown argues that (1) the judge's instructions to the jury permitted them to convict the defendant under a joint enterprise theory without finding that each participant in the joint venture shared the mental state required for each crime; (2) the judge failed to instruct the jury that malice aforethought is an element of murder in the first degree based on extreme atrocity or cruelty; and (3) the jury were not allowed to consider evidence of voluntary intoxication in determining whether the defendant had the capacity to form the intent required for the crimes charged. Each defendant also argues that he should receive relief under G.L. c. 278, § 33E.

The Commonwealth presented evidence from which the jury could have found the following facts. In the early morning hours of March 4, 1982, residents of a Cambridge apartment building heard a disturbance emanating from the apartment occupied by the victim, Carl Loebig. The resident of the apartment located directly below the victim's apartment subsequently was awakened by the sound of water dripping from his bathroom ceiling. He awakened the building superintendent and reported the leak. The two men then went upstairs to the victim's apartment. After knocking on the door and receiving no response, the superintendent opened the door and discovered the victim's body on the floor of the entrance way. He had been stabbed approximately forty times.

The superintendent telephoned the police, and they arrived at the apartment a short time later. The police noted blood stains in the hallway outside of the apartment, and on the walls of the stairwell. The victim's body was lying in a pool of blood, and a cardboard box covered the area of the body where the head was. The apartment had been ransacked. The police observed footprints, which appeared to have been made by ripple-soled shoes, in the blood surrounding the body. They found that the bathtub was full of rust-colored water, and discovered a kitchen knife in the tub. Further investigation revealed a palm print on the bathtub; the print subsequently was identified as that of the defendant Roach. Roach's fingerprint also was found on a juice bottle in the apartment. Outside of the apartment building, the police found blood stains in the snow, and discovered an empty vodka bottle.

At approximately 10:30 P.M. on March 3, 1982, the victim had telephoned Mary Whitty, the defendant Brown's sister. The victim told Whitty that he had received a telephone call from her brother, who was with a friend. Brown and his friend had been drinking heavily. Brown had asked the victim to come to the "Combat Zone" area of Boston, pick Brown and his friend up, and bring them back to the victim's apartment. Whitty advised the victim that he should create an excuse to avoid picking up the pair.

Brown went to the New England Medical Center at approximately 2:18 A.M. on March 4, 1982. He was treated for a lacerated index finger, and received seventeen stitches. Later, at approximately 4:00 A.M., both defendants arrived at the Hyannis home of Roach's sister. She and a second sister observed that both defendants had blood on their clothing and shoes, and both appeared intoxicated. Brown's hand was bandaged. The defendants had a bottle of vodka and a camera with them. They slept for several hours. Upon awakening, Brown changed his clothes and Roach ate breakfast. The defendants left the house at approximately 8:30 A.M. Before leaving, they gave the camera to Roach's sisters, who subsequently threw it away at the Yarmouth town dump. A man named Joseph Yonuss communicated with a Boston Police detective, whom he had known for a number of years, at approximately 10:00 P.M. on March 4, 1982. Yonuss told the detective that he knew that Kevin Roach and a man named "Butchie" were responsible for the Cambridge murder. Yonuss subsequently identified Brown from a photograph.

Yonuss told the police that he had been in a bar in the Combat Zone earlier that day and had observed the defendants drive past the bar in a brown automobile. Roach later entered the bar and asked Yonuss for some marihuana. Yonuss obtained the marihuana and brought it to the defendants. Brown and Roach were drinking vodka sitting in the car, which was parked in an alley behind the bar.

Yonuss and the two men smoked the marihuana cigarette. He noticed that Brown's hand was bandaged, and later observed blood stains in the car. Subsequently, Yonuss went back into the bar and the defendants left. The defendants later returned in the car and the three men went to Yonuss's apartment in Boston, which he shared with another man and a woman.

The three men sat in the kitchen of Yonuss's apartment, drinking vodka and talking. The defendants told him that they had executed a robbery in Cambridge on the previous night. They stated that they had taken a camera, a lens, some cash, and some change. They also told Yonuss that they had driven to Hyannis during the night and had given the camera to Roach's sister.

While the three men were talking, the television was on in the next room, and a news report of a stabbing death in Cambridge was broadcast. According to Yonuss, one of the defendants reacted to this news with the exclamation "Oh my God, this is it." One defendant stated, "This is number 1, the big one." Yonuss testified at trial that both defendants were present when all of these statements were made, but he could not specifically attribute any statement to a particular defendant.

After the defendants indicated their involvement in the murder, Yonuss asked whether the car they were driving belonged to the victim. They responded that it did belong to the victim and Yonuss suggested that they dispose of the car. The defendants then left the apartment, drove the car to South Boston, and abandoned it there with the keys in the ignition. When the defendants told Yonuss what they had done with the car, he proposed burning it. The three men moved the car to a more isolated location, set it on fire, and then returned to the apartment. Roach later left the apartment, and while he was out an altercation took place between Brown and Yonuss. Yonuss subsequently left the apartment and alerted the police detective.

1. Admissibility of testimony concerning out-of-court statements by the defendants. At trial, Joseph Yonuss testified that these conversations took place in his apartment prior to and shortly after news of Loebig's death was broadcast on the television. According to Yonuss, each defendant either said or heard the other say that they had perpetrated a robbery in Cambridge the previous night, but that the "simple robbery turned into a murder." Yonuss related additional...