Com. v. Carver

Decision Date16 June 1992
Docket NumberNo. 90-P-737,90-P-737
Citation600 N.E.2d 588,33 Mass.App.Ct. 378
PartiesCOMMONWEALTH v. James B. CARVER.
CourtAppeals Court of Massachusetts

Dana A. Curhan, Boston, for defendant.

S. Jane Haggerty, Asst. Dist. Atty., for the Com.

Before KASS, PORADA and LAURENCE, JJ.

PORADA, Justice.

The defendant was charged with fifteen counts of second degree murder and one count of burning a dwelling house. His first trial ended in a mistrial because of prosecutorial misconduct. At his second trial, he was convicted by a jury of all charges. The defendant filed a motion for a new trial, which was denied without a hearing.

On appeal from his convictions and the denial of his motion for a new trial, the defendant claims the trial judge erred as follows: (1) in denying his motion for a new trial without a hearing; (2) in making certain evidentiary rulings; (3) in instructing the jury that there was no evidence tying a particular witness, whose testimony at the trial had been impeached, to the crimes; (4) in failing to instruct the jury on consciousness of guilt; (5) in failing to instruct on involuntary manslaughter; (6) in refusing to dismiss the indictments on double jeopardy grounds or to preclude the use of evidence uncovered after the first trial; and (7) in revoking the defendant's original sentences and imposing in their place sentences which carried a later parole eligibility date. We affirm the convictions and the denial of a new trial.

We summarize the pertinent evidence presented at the trial. Fifteen people died in an early morning fire on July 4, 1984, at the Elliott Chambers rooming house in Beverly. An arson investigator, who inspected the scene on July 9, 1984, determined that the fire began in the alcove adjacent to the front entrance to the rooming house. He concluded that the fire had started on a stack of newspapers found next to the door which had been set on fire with some type of hydrocarbon accelerant. He ruled out electrical failure or spontaneous combustion as a cause of the fire.

In the early evening on July 3, 1984, the defendant was at work at the Atlantic House of Pizza, which is near the Elliott Chambers rooming house. In the alley adjacent to the defendant's work place, he encountered Rick Nickerson, who lived at the Elliott Chambers rooming house. The defendant warned Nickerson that if he continued to date the defendant's former girl friend, Lisa Maggiacomo, he would kill him and burn his house down. At about 1:15 A.M. on July 4, 1984, the defendant told a friend that he was upset because he had broken up with Lisa and that he wanted her back. Between 3:00 A.M. and 4:00 A.M., a cab driver observed the defendant standing in front of the rooming house and saw a car which fit the description of the defendant's car parked adjacent to the rooming house. Around 4:00 A.M., Florence Michaud, who delivered newspapers in the neighborhood, saw a man standing in the entry way to the rooming house leaning over a stack of newspapers. She could not identify the defendant as the man she had seen. At about the same time, Harold Eastman was delivering papers to the drug store adjacent to the rooming house and saw a man standing in the doorway to the rooming house smoking a cigarette. He testified that the defendant was not this man. The fire broke out at about 4:18 A.M. The defendant's parents testified that the defendant was at home asleep at that time. In the months that followed the aftermath of the fire, the defendant made a number of incriminating statements, including an admission to two friends that he had set the fire.

1. Motion for a new trial. The defendant argues that the judge erred in denying his motion for a new trial without a hearing. "The choice of deciding the motion on the basis of affidavits or hearing oral testimony is left largely to the sound discretion of the judge." Fogarty v. Commonwealth, 406 Mass. 103, 110, 546 N.E.2d 354 (1989). In exercising this discretion, the judge must decide whether a substantial issue necessitating an evidentiary hearing has been raised. Id. at 111, 546 N.E.2d 354. In doing so, the judge looks not only to the seriousness of the claims presented, but also to the adequacy of the defendant's factual showing on those claims. Commonwealth v. Stewart, 383 Mass. 253, 257-258, 418 N.E.2d 1219 (1981). Here, the motion before the trial judge alleged, without more, "the discovery of new evidence," and the only affidavit submitted in support of the defendant's motion was an affidavit of the defendant's trial counsel. The affidavit stated that counsel had received information that one Miles Hale had "confessed to the crimes [for] which James Carver was convicted" and that counsel had obtained this information after the defendant's convictions. Accompanying the motion were unverified summaries of State police interviews conducted at the Lawrence house of correction with Miles Hale and with three of his fellow inmates, who reported that Hale had admitted setting the fire by opening the door to the rooming house and throwing a lit newspaper into the hallway. Although the judge was entitled to reject the affidavit and the summaries as hearsay, Commonwealth v. Stewart, 383 Mass. at 258, 418 N.E.2d 1219, he denied the motion on the basis that no substantial issue meriting an evidentiary hearing had been raised because the alleged confession did not square with the expert testimony regarding the fire's point of origin and its cause. As the trial judge, he was entitled to use his knowledge and evaluation of the evidence at trial in reaching a decision on this motion. Commonwealth v. Tracy, 27 Mass.App.Ct. 455, 463, 539 N.E.2d 1043 (1989). The judge did not abuse his discretion in denying the motion without a hearing. See Fogarty v. Commonwealth, 406 Mass. at 110-111, 546 N.E.2d 354.

2. Evidentiary rulings.

a. Evidence of satanic cult activities. The defendant contends that the trial judge erroneously excluded evidence of satanic cult activities, which the defendant claimed was material in proving his defense that someone other than the defendant set the fire as part of a satanic ritual. Although a defendant may introduce evidence that someone else committed the crime charged or had the motive and intent to commit the crime, Commonwealth v. Graziano, 368 Mass. 325, 329, 331 N.E.2d 808 (1975), the evidence must not be too remote in time or too weak in probative value and it must be closely related to the facts of the case against the defendant. Id. at 329-330, 331 N.E.2d 808. Whether the evidence meets these tests is left to the sound discretion of the trial judge, which, although not absolute, will not ordinarily be disturbed by an appellate court. Commonwealth v. Harris, 395 Mass. 296, 300, 479 N.E.2d 690 (1985). Commonwealth v. Signorine, 404 Mass. 400, 408, 535 N.E.2d 601 (1989). We conclude that there was no abuse of discretion in this case.

Here, the defendant's claim was based on the judge's refusal to allow defense counsel to elicit information about satanic cult activities from three witnesses. The defendant asked a prosecution witness, Thomas Page, whether he was aware that Lisa Dion was involved in satanic culture or engaged in satanic rituals. Defense counsel informed the court that the evidence was relevant, for he intended to offer evidence that Lisa Dion had admitted that she had set the fire as part of a satanic initiation. However, at that juncture of the trial no evidence tying Lisa Dion to the fire or showing that the fire was set as part of a satanic ritual had been presented. Moreover, the judge did not preclude the defendant from offering this evidence later on in the trial if the defendant established its relevancy.

Similarly, the judge acted within the bounds of his discretion in refusing to allow the defendant to inquire of the deputy fire chief what materials were found in an adjacent building at the time of the fire. The defendant sought to show that the building contained books, weapons, and photographs associated with a cult activity. The defendant's offer of proof failed to establish that the witness had any personal knowledge of what the building contained and failed to show how those materials were related to the case being tried.

Finally, after a resident of the rooming house, Blanche Poor, testified that there were writings on the walls of her floor of the rooming house including an upside down cross, all of which had been removed "away back" and before the fire, the judge precluded the defendant from inquiring whether there were any threatening words on her door. The defendant asked the judge to admit this evidence as corroborative of the defense's theory that Lisa Dion set the fire as part of a satanic ritual. Since the witness had testified that the writings in the hallway had been removed before the fire and there was no evidence tying the writings to Lisa Dion or a satanic cult, we cannot say the judge abused his discretion in excluding this evidence.

b. Evidence of defendant's past falsehoods. The defendant claims that the judge erred in refusing to allow defense counsel to inquire of a prosecution witness whether the defendant had lied to her in the past to gain her sympathy. Christine Coletti had testified on direct examination that in October, 1984, the defendant told her he set the Elliott Chambers fire. On cross-examination, the judge precluded defense counsel from inquiring whether the defendant had lied to her in the past to gain her sympathy. The judge properly sustained the objection, because the question called for a mere opinion or speculation as to another person's state of mind. Commonwealth v. Millyan, 399 Mass. 171, 182-183, 503 N.E.2d 934 (1987). See Commonwealth v. Lewis, 286 Mass. 256, 257, 190 N.E. 513 (1934) (defendant not permitted to testify a person knew him because defendant did not have knowledge of that person's...

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