Com. v. Fano

• Decision Date: 16 June 1987
• Citation: 400 Mass. 296,508 N.E.2d 859
• Parties: COMMONWEALTH v. Arthur FANO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 859

508 N.E.2d 859

400 Mass. 296

COMMONWEALTH v. Arthur FANO.

Supreme Judicial Court of Massachusetts Essex.

Argued May 4, 1987.

Decided June 16, 1987.

Robert L. Sheketoff, Boston, for defendant.

Lila Heideman, Asst. Dist. Atty. (Robert N. Weiner, Asst. Dist. Atty., with her), for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

ABRAMS, Justice.

Convicted of murder in the first degree, the defendant, Arthur Fano, appeals. ¹ See G.L. c. 265, § 1 (1984 ed.). The defendant alleges error in the denial of his motion to exclude evidence of his prior criminal convictions. See G.L. c. 233, § 21 (1984 ed.). The defendant also claims error in the failure of the judge to instruct the jury on the effect of voluntary intoxication. We conclude that there is no error. We also have reviewed the case pursuant to G.L. c. 278, § 33E (1984 ed.), and conclude that there is no reason to exercise our power under G.L. c. 278, § 33E, in favor of the defendant.

We summarize the evidence. On May 25, 1984, the body of the victim, James Hemond, was discovered on the bank of the Merrimack River. Medical evidence revealed that the victim died as the result of a single gunshot wound to the head. The medical examiner estimated that the victim had been dead for between two and seven days prior to the autopsy. The Commonwealth's medical expert opined that the body had not been outdoors for more than one day prior to its discovery. The Commonwealth had no suspects at this time.

On May 18, 1984, the defendant had been introduced to the victim by a coworker, Margaret Billings. ² The defendant and a friend, Lawrence Nicgorski, ³ worked the night shift at a plastics company, where they had met Billings. On this same day, May 18, Billings, who had been staying at a shelter for the homeless, decided to stay with the defendant in his room at a rooming house in Lawrence. Nicgorski lived in the room adjacent to the defendant's room. When Billings introduced the victim to the defendant and Nicgorski, the four decided to meet later that night to go to work together.

That night, instead of going to work, the four met at a bar. Because the victim recently had moved out of a house he shared with his girlfriend, he asked Billings to move in with him. Although Billings remained noncommittal, the defendant became extremely angry and insisted that Billings was not going to move in with the victim, but instead would stay with him (the defendant). Because the victim did not have any place to stay, Nicgorski asked him if he wanted to stay with him at his room in the rooming house. The victim agreed.

The next day, Billings and the three men went to the dog races. Before leaving the rooming house, the defendant gave Billings a gun and a bullet and asked her to put them in her pocketbook. She did so. The defendant told Billings that he needed the gun because he and Nicgorski were going to "make a score."

At the race track, the defendant and Billings conversed about Billings's living situation. The defendant told her that she was not going to move in with the victim. Once again, Billings stated that she did not know what she was going to do. The defendant then stated that he was "going to take care of business." Later that evening, after Billings had gone to sleep, she was awakened by an argument coming from Nicgorski's room. ⁴ Billings stated that she recognized the voices of the victim and the defendant arguing about whether Billings would remain with the defendant or move in with the victim.

The following day, May 20, 1984, the four went to New Hampshire to purchase beer. They returned to the defendant's room to drink the beer. Billings did not know how much beer had been purchased or consumed, but she stated that, by the evening, the men had consumed "quite a bit" of beer. She stated that she did not know if the defendant was drunk.

During the evening, the three men left the defendant's room and Billings went to sleep. Once again, she was awakened by the sound of an argument between the defendant and the victim concerning her living situation. Billings stated that she got out of bed and moved to a chair. Shortly thereafter, Nicgorski entered the room and sat in another chair. Later, the defendant came into the room, went to the head of the bed, and removed his revolver from between the mattress and boxspring.

The defendant loaded the gun with two bullets. The defendant then stated that he was going to "take care of business" and left the room. Billings stated that she heard a gunshot. The defendant returned with the gun and put it back in the hiding place between the mattress and boxspring. The defendant stated that he had "taken care of business" and that he would take care of the gun ⁵ once he had gotten "rid of the garbage." Billings stated that the defendant told Nicgorski to lock the door to his room. The defendant threatened to kill Billings if she said anything to anyone about the shooting. The defendant then left the room again and returned with the victim's wallet. The defendant split the money in the wallet with Nicgorski. Finally, the defendant told Billings and Nicgorski that the victim was still breathing, bleeding, and moaning.

During the next four days, the defendant, Nicgorski, and Billings stayed in the defendant's room. On May 24, 1984, Billings and the defendant were in the defendant's room with Nicgorski and his girlfriend. The defendant told Nicgorski to unlock his room and bring his car around so they could "get rid of the garbage." The two women stayed in the defendant's room and heard the sounds of bottles falling and various thumping noises. Shortly thereafter, the two men returned and the defendant instructed the women to clean the hallway and Nicgorski's room. As the women wiped the hallway floor, they noticed a dark red colored liquid outside Nicgorski's door and they detected a foul odor like "spoiled meat" in the hall. ⁶

The two men returned approximately fifteen to twenty minutes later. The four of them then went out for coffee. When Nicgorski's girlfriend was dropped off at her home, the defendant told her that she would be in trouble if she told anyone what had happened. The next day the body of the victim was discovered.

Billings identified the victim's body, but initially she did not tell the police about the murder. On June 1, 1984, Billings told the police about the defendant's role in the murder. Search warrants were obtained and executed for the defendant's and Nicgorski's rooms, the attic of the rooming house, and Nicgorski's automobile.

In the hallway and in Nicgorski's room, human blood, the same blood group as the victim's, was discovered. ⁷ Blood and human flesh were found in Nicgorski's car. In the attic, in the bags containing the defendant's belongings, the police found Billings's pocketbook. Inside the pocketbook, the police recovered an unfired .38 caliber bullet. On June 2, 1984, the defendant was arrested.

The defendant claims error in the denial of his motion to exclude evidence of his criminal convictions. At the close of the Commonwealth's case, the defendant asked the judge "the extent that [he] would allow the Government to use" evidence of the defendant's criminal record to impeach the defendant's credibility should he decide to testify. The Commonwealth informed the judge that, if it were permitted, it would use the prior convictions of manslaughter, breaking and entering, receiving stolen property, escape, armed robbery while masked, and possession of burglarious implements to impeach the defendant's credibility. ⁸ The defendant argued at trial that the armed robbery conviction would be particularly prejudicial in light of Billings's testimony that the defendant was planning on making a "score" at the dog races. The judge indicated that the decision to admit evidence of criminal convictions was one of discretion and that he needed time to decide the issue. Shortly thereafter, the judge ruled that he would permit the Commonwealth to introduce evidence of prior convictions which qualify under G.L. c. 233, § 21. The defendant objected to the judge's ruling and stated that the defendant was planning to take the stand only if this impeachment evidence were excluded.

One witness testified on behalf of the defendant. This witness, the victim's fiancee, testified that she and the victim had had a terrible argument, as a result of which she asked the victim to leave her home. The witness stated that she threatened the victim and told him she would like to have someone beat him up. At the conclusion of this testimony, the defense rested its case and made an offer of proof as to the substance of the defendant's testimony had he taken the stand. The defendant would have testified that he did not shoot the victim, but that Nicgorski shot the victim, after the victim had pulled a knife and threatened Nicgorski. In the defendant's offer of proof, he did not deny his later participation in concealing the homicide.

1. The use of the prior convictions. The use of evidence of prior criminal convictions to impeach the credibility of a witness, including the defendant, is specifically authorized by G.L. c. 233, § 21, and does not infringe on the Federal or State constitutional rights of a defendant. ⁹ Spencer v. Texas, 385 U.S. 554, 560-561, 87 S.Ct. 648, 651-652, 17 L.Ed.2d 606 (1967). Commonwealth v. Diaz, 383 Mass. 73, 79, 417 N.E.2d 950 (1981). Commonwealth v. Gonzalez, 22 Mass.App.Ct. 274, 276, 493 N.E.2d 516 (1986). The decision whether to admit evidence of prior convictions to impeach a witness involves an exercise of discretion by the judge. Commonwealth v. Knight, 392 Mass. 192, 194, 465 N.E.2d 771 (1984). ¹⁰ The judge must balance the danger of unfair prejudice which can result from the admission of evidence of prior convictions against the probative value of the evidence for the purpose of impeachment. Commonwealth v. Maguire, 392 Mass. 466,...