Com. v. Casale

• Decision Date: 17 July 1980
• Citation: 381 Mass. 167,408 N.E.2d 841
• Parties: COMMONWEALTH v. Thomas F. CASALE et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 841

408 N.E.2d 841

381 Mass. 167

COMMONWEALTH v. Thomas F. CASALE et al. ¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 10, 1980.

Decided July 17, 1980.

Albert L. Hutton, Jr., Boston, for Thomas F. Casale.

Joseph J. Balliro, Boston, for Vincent J. Federico.

Brian J. Dobie, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, WILKINS and ABRAMS, JJ.

QUIRICO, Justice.

Joseph A. Bruno, Jr., Thomas F. Casale, and Vincent J. Federico were indicted for their alleged murder in the first degree of Robert N. McFarlane. After trial they were convicted of murder in the second degree and sentenced to life imprisonment. The defendants filed motions for directed verdicts at the conclusion of the Commonwealth's case and again at the close of all the evidence. The judge denied the motions. Four days after the verdicts, the defendants, acting under G.L. c. 278, § 11, renewed their motions for directed verdicts. The judge denied the motions of Casale and Federico, but allowed Bruno's motion, ruling that the evidence was not sufficient to sustain the conviction.

Casale and Federico appealed to the Appeals Court from the judge's order denying their renewed motions for directed verdicts. We then ordered the case transferred to this court, sua sponte. We affirm the judgments.

We have recently stated that in reviewing the denial of motions for directed verdicts in criminal cases we must consider whether the evidence, in the light most favorable to the Commonwealth, notwithstanding that presented by the defendant, is sufficient to permit the jury to infer the existence of the essential elements of the crime charged; and, whether the evidence and the inferences permitted to be drawn therefrom are sufficient to bring minds of ordinary intelligence and sagacity to the persuasion of guilt beyond a reasonable doubt. Commonwealth v. Latimore, --- Mass. ---, --- - --- ^a, 393 N.E.2d 370 (1979). Therefore, we consider first only the evidence admitted up to the time the Commonwealth rested when the motions were first filed, Commonwealth v. Borans, --- Mass. ---, --- ^b, 393 N.E.2d 911 (1979); Commonwealth v. Kelley, 370 Mass. 147, 150, 346 N.E.2d 368 (1976), and again the evidence after all parties have rested.

We now summarize the evidence introduced by the Commonwealth to the point where it rested. On Sunday, November 6, 1977, Lynne Russo, accompanied by the victim, Robert McFarlane, and by William Hackler and James Theologus, arrived at No. 20 Stillman Street in the North End of Boston between 10:15 and 10:30 A.M. Dominic Monforte was waiting for them. About fifteen minutes after arriving, they began to move Russo's possessions from her fifth floor apartment to the rented van which they had parked in front of the doorway to No. 20. McFarlane was not able to do any heavy work so he stayed downstairs and watched the van.

During the nearly two hours that it took the group to load the van, Casale and Federico were in the area of the street; were frequently standing in and going in and out of the doorways of both No. 18 and No. 20 Stillman Street; and were in the way some of the time. The entrance doorway was rather narrow. Federico sometimes blocked the path of the people carrying the boxes and sometimes spat on the sidewalk. Casale also spat on the sidewalk and in front of Theologus. For about ten minutes Casale and Federico swore at Theologus.

At one point Russo heard Federico say to Theologus, "Do you want to fight?" Theologus responded, "No," and Russo said, "Please let us finish packing and leave here in peace." Hackler recalled that Federico said something like, "You guys think you're tough. You want to fight?" At one time Federico asked Theologus if he wanted to fight and Theologus said, "Not necessarily."

At approximately 11:30 A.M. Casale and Federico had a conversation in the doorway of No. 18 Stillman Street. Federico, who lived on the second floor of No. 20 Stillman Street, then went into that building. Casale went in the direction of North Station. Casale was later seen returning with Bruno and two other, unidentified persons and the four of them moved, two by two, in "a strong steady march," faster than a normal walk, toward Stillman Street. As they reached the corner of Stillman and North Margin Streets, Federico quickly came out of No. 20, went around behind the van and joined the group which then passed along the side of the van.

At this time, Hackler was in between the open back doors of the van; Monforte was in the rear helping to load; McFarlane was on the sidewalk near the entrance to 20 Stillman Street; Theologus was at the right hand side of the van; and Russo was upstairs. The group of five, which included Casale, Federico, and Bruno, hesitated in front of the van and then went into the playground across the street. Monforte moved to the left of the van to check the tires and see that nothing was wrong and McFarlane moved along the other side of the van. About ten seconds later, during which McFarlane had walked the length of the van and turned in front of it, and the other group had entered the playground, five shots were heard from the playground area. Hackler, who was then inside the van heard the shots, jumped out, and saw McFarlane fall against the front fender of the van and then to the ground. As he was falling, McFarlane said, "They got me. They got me."

Monforte ran after Casale, who was running in the playground, and Theologus ran after him, trying to get him back "so he wouldn't get shot."

While standing in the doorway between the living room and kitchen of her fifth floor apartment, Russo heard five loud noises and looked out the kitchen window and then out the side window of the living room. She had an unobstructed view of the playground. At about noontime on this sunny day she saw three persons in the playground: Casale and Bruno were running and Federico, whom she recognized from the back of his hair and his jacket, was standing near an opening in the playground fence. She then ran downstairs and saw McFarlane lying on the sidewalk bleeding. When she first saw Monforte and Theologus after hearing the noises, they were in the playground running after Casale and Bruno.

Russo had come down from the apartment to the street a number of times during that morning and had not seen any persons in the area other than Casale and Federico. The movers did not see any persons, other than those five described above, in the area at the time of the shooting.

Officer Patti, who was on Thatcher Street in the North End that day, heard five shots at about 12:30 P.M., ran to the scene, and saw McFarlane lying on the sidewalk. Patti and one of the movers attempted to assist his breathing process but "the air was just coming out of the side where the holes were from the bullets." After getting no response, Patti instructed another officer to watch the body and he went to the playground area to search for a weapon. Patti observed bullet holes in McFarlane's chest and a bullet in the blood on the sidewalk when McFarlane's body was placed on a stretcher.

Another officer and a detective looked for evidence in the playground area and did not see a weapon of any kind. Detectives Joyce and Speranzo went to Stillman Street at about 12:30 P.M. that day, searched the area around the playground and then Joyce, other officers, and a sister of Federico went to a bowling alley on Front Street and found Bruno and Federico standing at a counter upstairs. Two other officers were on Prince Street in the course of responding to a call regarding the shooting when they noticed Casale running down the street, so they followed him. When they pulled alongside him he had stopped on the sidewalk; one officer spoke to him; and, as the officer started to get out of the car, Casale ran down Salem Street.

The medical examiner testified that McFarlane died as the result of a gunshot wound. An officer assigned to the ballistics unit of the Boston police department, testified that a bullet he removed from a sign on Stillman Street had been fired from an opening in a chainlink fence near the playground area. The defendants stipulated that the bullet removed from the sign and that recovered from under McFarlane's body were fired from the same gun.

The defendants' motions for directed verdicts simply alleged that the Commonwealth had failed to introduce sufficient evidence to permit the jury to find each guilty beyond a reasonable doubt, and did not refer to either a charge of murder or of murder in the first or second degree. The judge treated the renewed motions, filed after the verdicts were returned, as challenging the sufficiency of the evidence as to so much of the indictments as charged murder in the second degree. The quantum of the Commonwealth's evidence remained undiminished at the end of the trial.

We treat the motions in the same manner and, therefore, review the evidence, under the Latimore standard, to determine whether that evidence and the permissible inferences warrant the verdicts of guilty of murder in the second degree. See Commonwealth v. Richard, --- Mass. ---, --- ^c, 384 N.E.2d 636 (1979); Commonwealth v. Podlaski, --- Mass. ---, --- ^d, 385 N.E.2d 1379 (1979).

Murder in the second degree is an unlawful killing with malice aforethought; malice includes any intent to inflict injury on another without legal excuse or palliation. Commonwealth v. Hicks, 356 Mass. 442, 444-445, 252 N.E.2d 880 (1969), citing Commonwealth v. Bedrosian, 247 Mass. 573, 576, 142 N.E. 778 (1924). A fatal blow purposefully and wrongfully inflicted and not the product of chance or the frailty of human nature is malicious and murderous. Commonwealth v. Hodge (No. 2), --- Mass. ---, --- - --- ^e, 406 N.E.2d 1015 (1980).

We have recently cited with approval the statement appearing in Commonwealth v. Chance, 174 Mass. 245, 252, 54 N.E. 551 (1899), that "it is possible to commit murder...