Com. v. Carlino

• Decision Date: 08 May 2007
• Docket Number: No. SJC-09549.,SJC-09549.
• Citation: 449 Mass. 71,865 N.E.2d 767
• Parties: COMMONWEALTH v. Thomas P. CARLINO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

865 N.E.2d 767

449 Mass. 71

COMMONWEALTH v. Thomas P. CARLINO.

No. SJC-09549.

Supreme Judicial Court of Massachusetts, Bristol.

Argued January 5, 2007.

Decided May 8, 2007.

John H. Cunha, Jr. (Charles Allen Hope, Boston, with him) for the defendant.

M. Catherine Huddleson, Special Assistant District Attorney (Tara L. Blackman, Assistant District Attorney, with her) for the Commonwealth.

The following submitted briefs for amici curiae:

Timothy J. Cruz, District Attorney, & Robert C. Thompson, Assistant District Attorney, for District Attorney for the Plymouth District.

William R. Keating, District Attorney, & Varsha Kukafka, Assistant District Attorney, for District Attorney for the Norfolk District & others.

Present: MARSHALL, C.J., GREANEY, SPINA, COWIN, & CORDY, JJ.

COWIN, J.

A jury convicted the defendant of murder in the first degree on two theories: premeditation and extreme atrocity or cruelty.¹ The verdict slip, which listed separately the three theories of murder in the first degree, did not indicate whether the jury convicted or acquitted the defendant on the theory of felony-murder.² We set aside the conviction in Commonwealth v. Carlino, 429 Mass. 692, 710 N.E.2d 967 (1999), and the defendant was retried for murder.³ At the second trial, the jury were again presented with the option of finding the defendant guilty of murder in the first degree on any or all of the three theories, including felony-murder. This time the jury convicted on all three theories. At both trials, the judge did not instruct concerning the "castle" law, G.L. c. 278, § 8A.⁴

The defendant appeals, arguing that (1) he is entitled to a third trial because the judge should have given an instruction on the castle law; and (2) given the prohibition against double jeopardy, he could not be retried on the felony-murder theory after the first jury did not convict him on that ground. Alternatively, the defendant seeks a reduction of the conviction pursuant to our authority under G.L. c. 278, § 33E. We affirm and decline to exercise our power under § 33E.⁵

Facts. We summarize the evidence in the light most favorable to the defendant, primarily recounting his trial testimony,⁶ and calling attention to countervailing evidence.⁷ The defendant lived with his adult foster son, Robert Smith, in a trailer in Fall River. A ninety foot driveway led from the street to within a few feet of the trailer. During the evening of May 31, 1994, the defendant found the victim outside his trailer. The defendant offered food and shelter to the victim, but the defendant later discovered the victim looking under the defendant's truck while holding a lighter. The victim threatened the defendant and a physical altercation ensued. The defendant ordered the victim off his property. The victim left but threatened to return and "take care of both of you."

Later that night, the victim did return. He stood outside the defendant's trailer with a meat cleaver and a baseball bat, beat the defendant's trash cans and trailer, and yelled threats such as "Come on out. I'm going to kill you." The defendant awoke but remained in an intoxicated "stupor" and did not "know what was going on." He could not "remember too much of what went on that particular night," although he provided many details.

Smith went outside while the defendant dressed. The defendant heard Smith shouting, and grabbed what he called his "equalizer," a twelve-gauge sawed-off shotgun. Two types of ammunition, both birdshot and buckshot, were available but because of his intoxicated state, the defendant unknowingly loaded the shotgun with buckshot.

As the defendant exited the trailer with his shotgun to confront the victim, an unknown and never identified assailant allegedly fired a shot from a concealed position. That shot did not hit anyone. The defendant nonetheless focused on the victim, who was "rolling around on the ground," fighting with Smith on the driveway. The defendant fired one shot at the victim's legs at close range. The victim was bloodied and "lashed out" at the defendant with a knife. In the affray, the victim was stabbed fifteen times. The defendant admitted to taking the knife, but claimed not to remember actually stabbing the victim. A psychologist testified that the defendant's lapse of memory could be the result of "dissociation," a trauma-induced memory loss.

The defendant's trial testimony was contradicted by his own statements to police immediately after the event, the testimony of the Commonwealth's witnesses, and forensic evidence.⁸ A witness saw the victim walking to the defendant's home and heard the victim yelling "continuously" until silenced by a single gunshot. She did not hear a second shot close in time to the first, suggesting that there was no second assailant.⁹ The defendant told police that he had shot the victim, knocking him into the street, and that he was five to ten feet from the victim and five feet from Smith when he fired the shot. The defendant did not mention to the police any actual fighting between the victim and Smith. The defendant also said that, although there was another person at the scene, that person did not attack him. Ballistics evidence showed that the defendant was between twenty and thirty feet from the victim, further undermining the defendant's exculpatory version of events. Autopsy results revealed that the victim's upper leg, hip, and hand were totally shattered by the shotgun blast, and a doctor testified that the victim would have been wholly incapacitated by those injuries. His leg and hand were rendered useless and the wounds were "exquisitely painful," contradicting the defendant's claim that the victim attacked him after being shot. The defendant claimed initially that the fifteen stab wounds, twelve of which would have been fatal in the absence of any other, were not stab wounds at all, but the result of the shotgun blast; he asserted that the victim was not stabbed, further undermining his credibility.

Shortly after the attack on the victim, the defendant returned the shotgun to his trailer, locked the trailer, and loaded the victim into the bed of a pickup truck. Before the defendant could leave, police arrived in response to a telephone call. The defendant believed that the victim was alive when the officers arrived, but did not tell the police about the victim or his injuries, and, in response to an initial inquiry, he told the police that he had not heard any shots.¹⁰ Police saw a pool of blood at the side of the street and a trail of blood the length of the driveway. An officer checked the bed of the truck and discovered the victim's body under a tarpaulin.

At the second trial, the judge instructed on the three theories of murder in the first degree, murder in the second degree, and manslaughter. She also instructed on self-defense, defense of another, provocation, and other mitigation. The judge did not give an instruction on the castle law. See G.L. c. 278, § 8A.¹¹ The defendant was convicted of murder in the first degree on all three theories.

Discussion. 1. "Castle law" instruction. The defendant claims that he was erroneously deprived of a jury instruction concerning the so-called "castle" law. The statute, G.L. c. 278, § 8A, expressly limits use of the defense to "an occupant of a dwelling charged with killing or injuring one who was unlawfully in said dwelling," where the person charged "was in his dwelling at the time of the offense." Id. Even viewing the evidence in the light most favorable to the defendant, he and the victim were in the driveway during the fatal encounter, not in the defendant's dwelling. In the appeal after the first trial, we determined that those facts did not warrant an instruction concerning the castle law. Commonwealth v. Carlino, 429 Mass. 692, 697, 710 N.E.2d 967 (1999). The judge at retrial accordingly did not give the instruction. We have since determined that the defense provided by § 8A did not apply to an encounter on the exterior stairs and porch of a dwelling, confirming the inapplicability of the defense here. Commonwealth v. McKinnon, 446 Mass. 263, 267, 843 N.E.2d 1020 (2006). The language of § 8A and our earlier decisions resolve the issue. There was no error.

2. Double jeopardy. The defendant invokes the prohibition on double jeopardy in contending that his conviction of murder in the first degree was tainted because at his second trial the jury were presented with, and allowed to convict on, a felony-murder theory that he argues was rejected by the jury in the first trial.¹² "The constitutional prohibition against `double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense." Serfass v. United States, 420 U.S. 377, 387, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975), quoting Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). The defendant maintains that the prohibition against being placed in jeopardy twice for the same offense barred resubmission of the murder charge on a felony-murder theory at his retrial.¹³

In addition to felony-murder, the defendant was also convicted on theories of deliberate premeditation and extreme atrocity or cruelty. Those theories independently support the conviction of murder in the first degree. As the defendant conceded at oral argument, it is a moot issue whether conviction on the questioned theory was error. Commonwealth v. Candelario, 446 Mass. 847, 859-860, 848 N.E.2d 769 (2006). The double jeopardy argument has "no bearing on the defendant's conviction of murder in the first degree." Commonwealth v. Shine, 398 Mass. 641, 653-654, 500 N.E.2d 1299 (1986).¹⁴,¹⁵

Although the double jeopardy question is moot, in this case, it does "raise[ ] important issues with implications for the effective administration of justice," First Justice of the Bristol Div. of the Juvenile Court Dep't v. Clerk-Magistrate of...