Com. v. Clifford

Decision Date27 January 1978
Citation372 N.E.2d 1267,374 Mass. 293
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

John F. Donahue, Springfield, for defendant.

L. Jeffrey Meehan, Spec. Asst. Dist. Atty., for Commonwealth.


LIACOS, Justice.

The defendant was tried and found guilty by a jury on two indictments, one charging that he wilfully and maliciously set fire to the Mayflower Hotel in Springfield, and the other charging him with murder in the first degree of one Robert Stokes. On September 21, 1974, the judge sentenced the defendant to imprisonment for life on the indictment for murder in the first degree and fifteen to twenty years on the indictment for arson; he ordered the sentences to be served concurrently at the Massachusetts Correctional Institution at Walpole.

On appeal to this court, the defendant raises seven issues with respect to alleged errors of the trial judge in (1) denying the defendant's motion for a directed verdict, (2) denying the defendant's motion for a mistrial based on statements made by the witness Marilyn Olmstead, (3) admitting the testimony of the witness Robert James, (4) admitting evidence of in-court and out-of-court identifications of the defendant, (5) restricting the cross-examination of Marilyn Olmstead, (6) admitting in evidence certain photographs of the deceased, and (7) refusing to instruct the jury that this case was not a murder committed with extreme atrocity or cruelty.

We hold that there was no reversible error. We find no basis to modify the jury verdict under G.L. c. 278, § 33E.

We summarize the evidence in its aspect most favorable to the Commonwealth. Commonwealth v. Klein, --- Mass. ---, --- a, 363 N.E.2d 1313 (1977). Both the defendant and Stokes were residents of the Mayflower Hotel in Springfield. They occupied adjoining rooms on the fifth floor. In the early morning of April 7, 1974, the defendant and Stokes quarreled in the corridor outside Stokes's room. During this argument Stokes warned the defendant, "If I catch you in my room again, I'll kill you." The defendant responded to this threat by saying: "M. F., you ain't going to be doing nothing to me." There was a physical altercation between the two men which was broken up by other persons, including the night manager of the hotel. The night manager then asked the defendant to vacate his room and leave the hotel. This incident occurred approximately at 1:30 A.M. The defendant left the premises shortly thereafter. There was evidence that subsequently at a nearby automobile garage a man wearing a hat, bluish jacket, and dark pants clothing similar to that worn by the defendant purchased gasoline in a can between 2 and 3 A.M.

About 3 A.M. a fire broke out in the deceased's room. Expert testimony was to the effect that the cause of the fire was by "human design." The Commonwealth presented several witnesses linking the defendant to this crime. Marilyn Olmstead, occupant of the room next to the deceased's room, testified that at approximately 3:00 A.M. she opened her door after detecting the odor of gasoline and saw the defendant in dark pants and a blue jacket outside her door. One Robert Shumate testified he heard the victim in his room "screaming" and "hollering" that he was burning. The screams were described as "ungodly." Linda Washington, who occupied a room two doors from the deceased, testified that after noticing the fire she opened her door and saw the defendant standing in the hallway holding a can in his hand. She then fled the hotel, crossed the street, and observed the deceased jump from his fifth floor window and fall forty-five to fifty feet to the street below.

Shortly thereafter the police found the deceased in the alley by the rear of the hotel. His hair smelled of gasoline. An autopsy later revealed that the victim died from a broken neck, other multiple fractures, and lacerations of the lung, liver, and spleen. The body had extensive second and third degree burns of the back and neck and on all four extremities. There was evidence that the victim was still alive when he fell to the street but died almost immediately thereafter. At approximately 5:15 A.M. on the morning of the fire the defendant was arrested wearing a hat, blue jacket, and dark pants. His hands had the odor of gasoline.

The defendant took the stand in his own behalf and also presented several witnesses to establish an alibi defense.

1. Directed Verdict.

The defendant contends that the judge erred in denying the defendant's motions for directed verdicts at the close of the prosecution's case and at the close of all the evidence. The issue raised by a motion for a directed verdict is "whether there was sufficient evidence of the defendant's guilt to warrant the submission of the (case) to a jury." Commonwealth v. Baron, 356 Mass. 362, 365, 252 N.E.2d 220, 222 (1969), quoting from Commonwealth v. Altenhaus, 317 Mass. 270, 271, 57 N.E.2d 921 (1944). The appellate standard of review is whether the evidence, read in a light most favorable to the Commonwealth, Commonwealth v. Flynn, 362 Mass. 455, 479, 287 N.E.2d 420 (1972), is sufficient so that the jury "might properly draw inferences, not too remote in the ordinary course of events, or forbidden by any rule of law, and conclude upon all the established circumstances and warranted inferences that the guilt of the defendant was proved beyond a reasonable doubt." Commonwealth v. Vellucci, 284 Mass. 443, 445, 187 N.E. 909, 910 (1933). Commonwealth v. Gallagher, --- Mass.App. ---, --- b, 357 N.E.2d 31 (1976).

From the evidence as summarized above, the jury properly could have found the defendant guilty of the crime of arson and the crime of murder in the first degree, either because committed with deliberately premeditated malice aforethought or with extreme atrocity or cruelty. The defendant contends that his alibi defense is as plausible as the confusing and uncertain testimony of the Commonwealth's two principal witnesses, Olmstead and Washington, who placed the defendant in the hall at the time of the fire. But it was for the jury and not the judge to determine whether the defendant's explanations should be believed. Commonwealth v. Vellucci, supra at 446, 187 N.E. 909.

The defendant erroneously relies on Commonwealth v. Croft, 345 Mass. 143, 145, 186 N.E.2d 468, 469 (1962), where this court stated: "When the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof."

This is not a case, however, in which the guilt of the defendant has no solid foundation in fact, as happened in Croft. In Croft, the inference that the defendant held heroin with the intent to sell was no more compelling than the inference that he retained it until he was certain he had defeated his drug habit. Id. at 144-145, 186 N.E.2d 468. See Commonwealth v. Fancy, 349 Mass. 196, 200, 207 N.E.2d 276 (1965) (defendant's mere presence in the apartment where stolen liquor was found was insufficient to convict him of stealing liquor); Commonwealth v. Altenhaus, supra at 273-274, 57 N.E.2d 921 (evidence on issue of the defendant's knowledge of use of hotel for immoral purposes was as consistent with innocence as with his guilt). Here, the prosecution's evidence strongly supported the inference that the defendant committed arson and murder. While the jury could have disbelieved the testimony of Olmstead and Washington and that of the other prosecution witnesses they were not required to do so. The judge properly denied the defendant's motions for a directed verdict.

2. Motion for Mistrial.

Under the fourth assignment of error, the defendant argues that the judge committed reversible error by denying the defendant's motion for a mistrial based on the testimony of Marilyn Olmstead. During direct examination, Olmstead alluded to the defendant's involvement in a robbery. 1

Ordinarily, evidence of other crimes and prior misconduct of which the defendant might be guilty may not be received. Commonwealth v. Nassar, 351 Mass. 37, 42-43, 218 N.E.2d 72 (1966), appeal after remand, 354 Mass. 249, 237 N.E.2d 39 (1968), cert. denied, 393 U.S. 1039, 89 S.Ct. 662, 21 L.Ed.2d 586 (1969). Commonwealth v. Welcome, 348 Mass. 68, 70, 201 N.E.2d 827 (1964). Commonwealth v. Banuchi, 335 Mass. 649, 654, 141 N.E.2d 835 (1957). Commonwealth v. Ellis, 321 Mass. 669, 670, 71 N.E.2d 741 (1947). Commonwealth v. Stone, 321 Mass. 471, 473, 73 N.E.2d 896 (1947). Commonwealth v. Green, 302 Mass. 547, 552, 20 N.E.2d 417 (1939). W. B. Leach & P. J. Liacos, Massachusetts Evidence 122-123 (4th ed. 1967). This rule stems from the belief that such evidence forces the defendant to answer accusations not set forth in the indictment, confuses his defense, diverts the attention of the jury, and may create undue prejudice against him. Commonwealth v. Jackson, 132 Mass. 16, 20-21 (1882).

The harmful effects of such evidence, however, can be offset by a judge's careful warning to the jury. Here the improper and nonresponsive answer by the witness was immediately cured by the judge's instruction that the jury disregard the witness's remark. 2 This court adheres to a practical view which does "not assume that jurors will slight strong and precise instructions of the trial judge to disregard the matters which have been withdrawn from their consideration." Commonwealth v. Gordon, 356 Mass. 598, 604, 254 N.E.2d 901, 904 (1970). See Commonwealth v. Stone, 366 Mass. 506, 513, 73 N.E.2d 896 (1974).

Where we have held that the judge's instructions did not cure the error, other factors were present. Compare Commonwealth v. Banuchi, supra, 335 Mass. at 654, 141 N.E.2d 835 (although giving cautionary instructions, the judge left the same prejudicial evidence in later during cross-examination), and Commonwealth v. Kosior, ...

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