Com. v. Doucette

• Decision Date: 25 September 1990
• Citation: 408 Mass. 454,559 N.E.2d 1225
• Parties: COMMONWEALTH v. Charles W. DOUCETTE, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1225

559 N.E.2d 1225

408 Mass. 454

COMMONWEALTH v. Charles W. DOUCETTE, Jr.

Supreme Judicial Court of Massachusetts,

Essex.

Argued May 9, 1990.

Decided Sept. 25, 1990.

Elin H. Graydon, Asst. Dist. Atty., for Com.

Robert A. George, Boston, for defendant.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.

O'CONNOR, Justice.

This is the Commonwealth's appeal from a judge's order allowing the defendant's motion for required findings of not guilty after a jury had found the defendant guilty of murder in the first degree and unlawfully carrying a firearm in a motor vehicle. We transferred the case from the Appeals Court to this court on our own initiative. The Commonwealth has failed to present an argument within the meaning of Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), with respect to the indictment for unlawfully carrying a firearm in a motor vehicle. Therefore, as to that charge, we affirm the order below. However, we vacate the order allowing the defendant's motion for a required finding of not guilty of murder, with the result that the jury's verdict of guilty of murder in the first degree is reinstated.

The defendant moved for the entry of a required finding of not guilty on the two indictments at the close of the Commonwealth's case. The judge denied that motion. The defendant presented a similar motion at the close of all the evidence, and that motion, too, was denied. The jury then found the defendant guilty of murder in the first degree and guilty on the carrying charge, and the judge discharged the jury. On the following day, the defendant filed the following motion in reference to both indictments: "The defendant moves that the Court enter a required finding of not guilty on the ground that the evidence is insufficient as a matter of law to sustain a conviction of the defendant." The trial judge subsequently endorsed the motion in this way: "After hearing Allowed. [S]ee Jackson v. Virginia, 443 U.S. 307[, 99 S.Ct. 2781, 61 L.Ed.2d 560] Commonwealth v. Latimore, 378 Mass. 671 and Mass. R. of Crim. Procedure R 25."

Rule 25 of Mass.R.Crim.P. provides in relevant part as follows: "(a) Entry by Court. The judge on motion of a defendant or on his own motion shall enter a finding of not guilty of the offense charged in an indictment ... after the evidence on either side is closed if the evidence is insufficient as a matter of law to sustain a conviction on the charge.... (b) Jury Trials.... (2) Motion after Discharge of Jury. If the motion is denied and the case is submitted to the jury, the motion may be renewed within five days after the jury is discharged and may include in the alternative a motion for a new trial. If a verdict of guilty is returned, the judge may on motion set aside the verdict and order a new trial, or order the entry of a finding of not guilty, or order the entry of a finding of guilty of any offense included in the offense charged in the indictment or complaint."

Pursuant to rule 25(b)(2), a trial judge has discretion to award a new trial on the ground that the verdict, although supported by legally sufficient evidence, was against the weight of the evidence, Commonwealth v. Preston, 393 Mass. 318, 324, 471 N.E.2d 340 (1984), or because its integrity was suspect. Commonwealth v. Cornish, 28 Mass.App.Ct. 173, 177-178, 547 N.E.2d 948 (1989). Rule 25(b)(2) also empowers a judge to reduce the jury's verdict to guilty of a lesser-included offense when, in the judge's discretion, including his or her view of the credibility of the witnesses and the weight of the evidence, the lesser verdict is required in the interests of justice. Commonwealth v. Keough, 385 Mass. 314, 318-321, 431 N.E.2d 915 (1982). Commonwealth v. Gaulden, 383 Mass. 543, 555, 420 N.E.2d 905 (1981). A judge's exercise of discretionary power is subject to review only for possible abuse. Id. at 557, 420 N.E.2d 905. In deciding a rule 25(b)(2) motion for a required finding of not guilty following a guilty verdict, however, the judge does not properly exercise discretion concerning the weight or integrity of the evidence, but instead must assess the legal sufficiency of the evidence by the standard set out in Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979). Commonwealth v. Marsh, 26 Mass.App.Ct. 933, 935, 525 N.E.2d 444 (1988). Commonwealth v. Torres, 24 Mass.App.Ct. 317, 323-325, 508 N.E.2d 877 (1987). The question is one of law.

The defendant's postconviction motion was limited to a request for the entry of a required finding of not guilty on the ground that the evidence as to both indictments was legally insufficient to sustain a conviction. It is clear from the judge's endorsement on the motion that the judge's action was based on his determination that the evidence was insufficient to prove guilt as a matter of law. Thus, the question for this court on appeal is, as it was for the judge, "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis in original). Commonwealth v. Latimore, supra 378 Mass. at 677, 393 N.E.2d 370, quoting Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). Although the record makes abundantly clear that the trial judge was extremely dissatisfied with the credibility of the Commonwealth's witnesses, the weight of the Commonwealth' evidence, the competence and integrity of its investigation, and with the conduct of the prosecution generally, he neither engaged in an exercise of discretion nor did he purport to acquit the defendant as a sanction for perceived misconduct on the part of the Commonwealth. The defendant's motion did not seek such remedies. Therefore, our inquiry is limited to the correctness of the judge's ruling that, measured by the Latimore standard, and without reference to the credibility of the witnesses or weight of the evidence, see Commonwealth v. Cinelli, 389 Mass. 197, 204, 449 N.E.2d 1207 (1983); Commonwealth v. Fitzgerald, 376 Mass. 402, 410-411, 381 N.E.2d 123 (1978) and cases cited; Commonwealth v. Torres, supra 24 Mass.App.Ct. at 322-324, 508 N.E.2d 877, the evidence was insufficient to support the verdict of guilty of murder. In this connection, we note that the defendant does not argue that, even if the evidence was sufficient to support a verdict of guilty of murder, it did not warrant a verdict of murder in the first degree. The defendant's contention is that the evidence was insufficient as a matter of law to warrant a finding of murder.

We recite the facts that the jury, viewing the evidence in the light most favorable to the Commonwealth, reasonably could have found at the close of the Commonwealth's case. From June until August, 1986, the victim, Raymond Bufalino (Bufalino), worked at Charlie's Texaco gasoline station in Salem. The defendant's father (Doucette, Sr.) owned and operated the station. The defendant also worked there. While working at the station, Bufalino was injured. There was no workers' compensation insurance. Beginning in 1986, Doucette, Sr., tried several times to persuade Bufalino to sign a release relieving Doucette, Sr., of liability. Bufalino refused to do so.

The evidence indicated that, during the summer or fall, 1986, Bufalino and his wife, Shauna, borrowed $1,000 from Doucette, Sr., which they repaid in October, 1986. Bufalino also borrowed $1,000 from the defendant, which the defendant asked Bufalino to repay in 1986. Shauna Bufalino obtained a loan from a credit union and repaid $500 on Christmas Eve, 1986. In January and February, 1987, Shauna Bufalino received twenty to twenty-five telephone calls from the defendant asking when she would repay the balance of the loan.

On Saturday, February 21, 1987, Bufalino left his home in Salem at approximately 6 A.M. and visited his parents in Lynn. He ate a breakfast consisting of ham, eggs, juice, and coffee at approximately 7 A.M. and returned to his home at approximately 9 A.M. The defendant was with him then. The defendant was wearing navy blue pants and a blue and red ski parka, and had a black beard and mustache. Bufalino and his wife discussed with the defendant a letter that the defendant had given to Bufalino concerning the release of workers' compensation claims. The defendant said that his father did not "want anybody to be hurt in reference to the letter." Bufalino asked the defendant why the defendant's father had sent the defendant to pressure Bufalino into signing a release. The defendant responded that he did not know, and he suggested that Bufalino ask Doucette, Sr., himself. The defendant and Bufalino spoke quietly for approximately ten minutes, and then the two left Bufalino's home in separate automobiles at approximately 9:15 A.M. The defendant drove off in a red automobile and Bufalino left in a beige Chevrolet Citation automobile.

At approximately 10:15 A.M., the defendant called Shauna Bufalino and asked her if her husband had returned home. He told her that her husband had been expected to go to Charlie's Texaco station to discuss with Doucette, Sr., the prospect of working there again, but he had not shown up. Shauna Bufalino telephoned several people to ask if they had seen her husband that morning. No one had seen him. She then borrowed a friend's automobile and went searching for her husband. Eventually, at about 3 P.M., she saw the beige Chevrolet Citation parked on the side of Harmony Grove Road near the Salem-Peabody town line. When she opened the driver's side door, she found her...