Com. v. DeCicco

• Citation: 44 Mass.App.Ct. 111,688 N.E.2d 1010
• Decision Date: 24 February 1998
• Docket Number: No. 96-P-434,96-P-434
• Parties: COMMONWEALTH v. Joseph A. DeCICCO.
• Court: Appeals Court of Massachusetts

Page 1010

688 N.E.2d 1010

44 Mass.App.Ct. 111

COMMONWEALTH v. Joseph A. DeCICCO.

No. 96-P-434.

Appeals Court of Massachusetts,

Suffolk.

Argued March 13, 1997.

Decided Jan. 2, 1998.

Further Appellate Review Denied Feb. 24, 1998.

Wendy Sibbison, Greenfield, for defendant.

Eric Neyman, Assistant District Attorney, for the Commonwealth.

Before PERRETTA, LAURENCE and LENK, JJ.

PERRETTA, Justice.

On the early morning of January 16, 1994, an incendiary bomb, commonly called a "Molotov cocktail," was thrown through the window of a wood frame house. Before the resulting fire was extinguished, one of the occupants of the house was dead, three firemen injured, and two houses damaged. The defendant and George Madden were ultimately charged with all the crimes associated with the fire. Each gave the police a statement claiming that the other had thrown the bomb. The defendant was tried separately and found guilty on the many indictments against him, including second degree murder on a felony-murder theory and two counts of arson. ¹ , ² On appeal, he complains about the denial of his motions for required findings of not guilty, the jury instructions, the prosecutor's closing argument, the representation provided by his attorney, ³ and the imposition of duplicative sentences. We vacate two of the defendant's convictions and affirm the remaining judgments.

1. The evidence. We recite the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-678, 393 N.E.2d 370 (1979). Robert Hilliard (Hilliard) lived at 228 Bellingham Avenue, Revere, with his son Wayne. The defendant and George Madden lived in separate units at the same apartment complex which was located at 188 Bellingham Avenue.

Hilliard and the defendant met in 1993, and thereafter saw each other on an almost daily basis. Hilliard would buy cocaine which he would share with the defendant and the defendant's friends, including George Madden, at his apartment. By December of 1993, Hilliard had exhausted his savings on the drug and decided that he had to stop using it. When he told the defendant that there would be no more cocaine, the defendant began to pressure him with telephone calls and visits to his house. He would bang on Hilliard's front door, he threw a brick through one of Hilliard's windows, he entered Hilliard's porch and destroyed all his effects with a shovel, and he repeatedly threatened to harm or to kill Hilliard. The defendant and Madden went to Hilliard's home together on numerous occasions to attempt to persuade him to supply them with cocaine. By the end of December, after the defendant had threatened to kill him, Hilliard kept a loaded shotgun nearby at all times.

On January 16, 1994, a neighbor of Hilliard's was preparing for bed. As she went to pull down her window shade, she saw a man "put a light in [Hilliard's] sun parlor window [and] it gradually grew larger, and then there was an explosion." She was unable to identify the person that she saw.

Hilliard testified that it was about 12:35 A.M., when he was awakened by his son who was screaming that the house was on fire. The entire porch was in flames. The fire spread quickly, shooting "right across the ceiling just like a river of flames, the heat and the pressure and the smoke." Both men struggled to escape. Hillard was able to jump from a window to the ground twelve feet below. His son could not get out of the house, and he died from "acute carbon monoxide poisoning."

The defendant was among a group of neighbors who were watching the fire. He was wearing a nylon jogging suit and carrying a bottle of wine. He was visibly intoxicated. A Revere police officer placed the defendant in protective custody and arranged for his transportation to the police station. Upon returning to the crowd watching the fire, the officer received information from bystanders concerning Madden. He too was intoxicated and taken into protective custody.

Over twelve hours after being taken into custody, Madden and the defendant made statements in which each accused the other of starting the fire. Madden's version of events was as follows. The defendant came to his apartment asking for some beer. At some point, Madden went out and purchased a bottle of wine. As he and the defendant sat in the apartment drinking the wine, the defendant stated that he wanted to throw a fire bomb at Hilliard. Madden, describing himself as "feeling good" at that point, told the defendant to do it even though he, Madden, didn't know how to make a fire bomb. The defendant then told Madden that he had something in the cellar and that Madden should follow him. They went to the basement, and Madden watched the defendant go into the boiler room and return with a tube filled with liquid.

Although Madden first told the police that he gave the defendant a rag which the defendant put in the tube, he later stated that he put the rag, a white face cloth from his kitchen, in the tube. When he did so, some of the liquid squirted out. Madden stated that he next placed three matches around the top of the tube. He told the police that he gave the defendant the matches because he asked for them and that the entire matter was the defendant's idea. Once the device was made, Madden and the defendant left the building and started out for Hilliard's house. Madden, who was wearing a white hat and coat, stayed about fifteen yards behind the defendant. When he saw the defendant light the matches and throw the tube, he quickly returned to his apartment. The defendant came back within a minute or two and told Madden that he was going to go back to watch the fire.

Accusing Madden, the defendant told the police that he was at Madden's apartment, that they had been drinking beer and wine, and that Madden said he had some "crack" pipes with leftover resin in them. The defendant offered to clean the pipes with methanol so that he and Madden could then smoke the resin. He took a small glass spice jar from Madden and went to the basement. There he filled the jar from a fifty-five gallon drum of methanol. When he returned to Madden's apartment, Madden took the jar and said he was going to set a fire at Hilliard's property. He put a rag and matches in the bottle. The defendant did not believe Madden actually intended to start a fire, and he did not really want to argue with him: Madden was "buying the beer and he had the pipes and the resins."

When Madden left the apartment, the defendant thought that he was "just going to go around the corner and throw it somewhere." Madden returned and told the defendant that he had thrown the bomb and asked him to tear up his hat and throw it away. The defendant told the police that he did as Madden asked, throwing the hat away in the backyard.

The defendant acknowledged that the methanol was his and explained to the police that he used it on his sister's car as an octane booster. He also acknowledged that he had had arguments with Hilliard and that he had broken his window. According to the defendant those arguments concerned the fact that Hilliard was "beating on girls."

2. Sufficiency of the evidence. The defendant's argument concerning his motions for a required finding of not guilty concentrates on the sufficiency of the evidence in respect to the underlying felony, arson: If the evidence is insufficient to show his arson of Hilliard's house, his conviction for the murder of Wayne Hilliard cannot stand. To sustain its burden of proof on the arson charges against the defendant, the Commonwealth was required to prove beyond a reasonable doubt that he, acting alone or in a joint venture with Madden, set fire to a dwelling house or that he aided, counseled or procured the burning of that dwelling house.

Although there was sufficient evidence (Madden's statement to the police and his testimony at trial) to show that the defendant was a principal in the arson, the defendant argues that the evidence failed to show his participation in the fire as a joint venturer. Further, the argument continues, the defendant was not indicted as an accessory before the fact and even had he been so charged, the evidence of his accessorial participation was insufficient. The conclusion to the argument is that because it cannot be ascertained upon which theory of guilt the general verdict is based (principal, joint venturer, or accessory) the arson and felony-murder convictions cannot stand.

Relying upon Commonwealth v. Green, 420 Mass. 771, 780, 652 N.E.2d 572 (1995), the defendant argues that because the only evidence of his presence at the fire came from Madden who placed him there as a principal, a "rational jury would not be warranted in inferring that he was not the principal, but was present at the scene as the joint venturer." Green is, however, distinguishable on its facts. There were two witnesses in Green who saw two men at the scene of a murder. Only one of the two witnesses established that the defendant was one of the two men and that same witness "unequivocally identified the defendant as the shooter." Ibid. In concluding that the jury would not be warranted in inferring that the defendant was not the principal but was present as a joint venturer, the court explained: "Such an inference would be speculative and highly unreasonable, because the evidence in this case solely pointed to the defendant's role as the principal. Cf. Commonwealth v. Daughtry, 417 Mass. 136, 139-140, 627 N.E.2d 928 (1994) (no error in charging jury on joint venture where Commonwealth offered evidence from which jury could infer that either defendant or accomplice fired fatal shot)." Commonwealth v. Green, 420 Mass. at 780-781, 652 N.E.2d 572.

It is the defendant's position that the Commonwealth's proof of joint venture fails on the required element of the defendant's required presence at Hilliard's house when the fire was started. We think, however, that the jury could have reasonably concluded...