Com. v. Festa

• Decision Date: 05 January 1976
• Citation: 369 Mass. 419,341 N.E.2d 276
• Parties: COMMONWEALTH v. John L. FESTA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 276

341 N.E.2d 276

369 Mass. 419

COMMONWEALTH

v. John L. FESTA.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 6, 1975.

Decided Jan. 5, 1976.

Robert A. Stanziani, Boston, for defendant.

Alan L. Kovacs, Asst. Dist. Atty. (Bonnie H. MacLeod-Griffin, Asst. Dist. Atty., with him), for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and WILKINS, JJ.

REARDON, Justice.

The defendant was indicted on March 6, 1974, for murder in the first degree of Adolph Abruzzese, and in October, 1974, was tried, found guilty of murder in the second degree and sentenced to life imprisonment. His appeal is here under G.L. c. 278, §§ 33A--33G. He argues six assignments of error which will be treated seriatim below.

A jury could have found that on January 27, 1974, about 3 A.M., Abruzzese was shot in the head in his Malden home and that as a consequence he died on February 10, 1974, at a hospital. The defendant, accompanied by one Dolores Montanino, had left an East Boston bar at some time around 2:30 A.M. on January 27, 1974. The defendant had previously stated that he was calling a friend to get a ride to Montanino's house. The call produced a certain Robert West who came in a truck to pick them up. When the three got into the truck the defendant asked West to drive him to Malden, where he then told West to stop the truck on Hancock Road. Upon alighting from the truck, he asked Montanino and West to wait there for him. After waiting for five or six minutes his two companions decided to look for the defendant, and West tried unsuccessfully to start the truck's engine. He and Montanino pushed the truck, endeavoring to 'jump-start' it. As the truck finally started, Montanino heard a noise that sounded like a firecracker. The movements of West and Montanino were observed by two witnesses living close by.

Between 3 A.M. and 3:30 A.M., Maria Abruzzese, the mother of the victim, heard a knock at her door at 24 Hancock Road, Malden. Her son, Adolph Abruzzese, answered the door. She heard a person speaking to her son and recognized the voice as that of the defendant. After her son told him to go home, the next thing that she heard were shots and some glass breaking. Although she was afflicted by arthritis, she struggled from her chair and walked into the kitchen, where she saw her son lying on the floor with blood on his face. The back door then opened, and the defendant entered and put something into a trash basket. He obtained a pillow from a room nearby, placed it beneath the victim's head, and said, 'You'll be all right. I'm sorry.' Two Malden police officers who arrived at the scene after receipt of a radio dispatch at approximately 3:10 A.M. noticed the truck with a woman standing beside it, and then proceeded to 24 Hancock Road where the victim's mother was screaming on the front porch. When one of the officers entered the house he saw the defendant leaning over the victim and saying, 'I'm sorry, Al. I'm helping you, Al.' The defendant was apprehended, handcuffed and taken to the Malden police station where his statement was taken. Later that day a police sergeant, while searching the kitchen in the Abruzzese home, found a Colt .38 caliber revolver in the trash basket and a spent projectile on the kitchen counter. Prior to his death the victim was interviewed at the hospital by a Malden police lieutenant. He told the lieutenant that the defendant was his friend and that he did not shoot him.

1. The defendant argues that the judge erred in intimating that the witness Dolores Montanino was lying. After direct examination the judge asked her if she was aware that she had sworn to tell the truth and that failure to do so would subject her to criminal penalties. The judge then inquired concerning her testimony as to the circumstances of her accompanying West and the defendant to Malden on the night in question. She had stated that there was no discussion among them as to why they were bound for Malden despite the fact that, according to her earlier testimony, the defendant had told her he was getting her a ride to her home, which was a short distance from the East Boston bar where she had been with the defendant and in the opposite direction from Malden. The judge then asked her, 'Do you want to leave it with the jury that there was no discussion about why you were going to Malden?' The defendant objected to this questioning and saved an exception; he contends 'that the remarks of the Court could warrant the jury in finding that the Judge disbelieved the witness's sworn testimony.'

There is no doubt that a judge can properly question a witness, albeit some of the answers may tend to reinforce the Commonwealth's case, so long as the examination is not partisan in nature, biased, or a display of belief in the defendant's guilt. Commonwealth v. Hanscomb,--- Mass. ---, --- - --- ^a, 328 N.E.2d 880 (1975). Commonwealth v. Oates, 327 Mass. 497, 500, 99 N.E.2d 460 (1951). See 3 J. Wigmore, Evidence § 784 (Chadbourn rev. 1970). We have not restricted the right, and perhaps the duty, of a judge to intervene occasionally in the examination of witnesses. We had such an example in Commonwealth v. Fiore, --- Mass. ---, --- - --- ^b, 308 N.E.2d 902, 908 (1974); where discrepancies developed between certain testimony of witnesses and earlier testimony of the same witnesses. The judge moved in and 'took a hand in indicating to . . . (each) witness the extent of the inconsistencies.' We held in that case that the questions by the judge were not clearly biased or coercive, and were basically directed toward protecting the witnesses from possible prejury and developing the most trustworthy testimony. We are of the view that the same situation obtains here. See Commonwealth v. Fleming, 360 Mass. 404, 409, 274 N.E.2d 809 (1971); Commonwealth v. Freeman, 352 Mass. 556, 560, 227 N.E.2d 3 (1967).

Furthermore, even if the judge was overzealous in the manner in which he interrogated the witness, we conclude that this constituted at most harmless error. The judge in his charge to the jury specifically instructed them that they alone were to decide the facts, stating that nothing which he has said 'must tend to influence your judgment as to the facts. Nothing that I may have done during the trial should be taken by you as an indication of the facts that you should find. You are the sole judge of the facts.' See Commonwealth v. Leventhal, --- Mass. ---, --- ^c, 267 N.E.2d 497 (1974); Commonwealth v. Oates, supra, 327 Mass. at 500, 99 N.E.2d 460. In addition, the interrogation of Montanino by the judge was a minor item in a lengthy trial, not comparable to judicial interventions which have been held to be so prejudicial to the defendant as to constitute reversible error (see, e.g., Webb v. Texas, 409 U.S. 95, 96--97, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972); United States v. Hill, 332 F.2d 105, 106 (7th Cir. (1964)). We conclude that the judge's behavior when considered in the context of the entire trial and the charge to the jury cannot be deemed to have deprived the defendant of a fair trial.

2. There was no error in denying the defendant's motion for a directed verdict of not guilty with respect to that part of the indictment which charged him with murder in the second degree. The evidence against him, if believed, might reasonably lead a jury to conclude that the facts were 'incompatible with the innocence of the defendant and not in accord with any other theory than his guilt.' Commonwealth v. Francis, 355 Mass. 108, 109--110, 243 N.E.2d 169 (1969). The argument of the defendant that there was no evidence of malice or 'ill will' on the part of the defendant toward the victim, and that this therefore precluded a verdict of guilty of murder in the second degree, betrays a basic misunderstanding of the meaning of 'malice aforethought' employed with respect to the crime of murder in this Commonwealth. Malice aforethought does not necessarily require a showing of ill will toward the victim. Rather it comprehends any intent to inflict injury without legal justification or palliation. Commonwealth v. Hicks, 356 Mass. 442, 444--445, 252 N.E.2d 880 (1969). Commonwealth v. Bedrosian, 247 Mass. 573, 576, 142 N.E. 778 (1924). When a killing is the result of the intentional use of a deadly weapon, malice ordinarily may be inferred. Commonwealth v. Davis, --- Mass. ---, --- - --- ^d, 307 N.E.2d 6 (1974). Commonwealth v. McCauley, 355 Mass. 554, 559, 246 N.E.2d 425 (1969). The evidence here was sufficient to support the jury's verdict of guilty of murder in the second degree.

3. Defendant argues that the testimony of the victim's mother, that she heard the defendant talking to her son at the door of the house shortly before he was shot, should have been excluded because no foundation was laid to establish that she could recognize the defendant's voice. Mrs. Abruzzese's testimony makes it plain that she knew the defendant as a friend of her son for ten years, that he had often visited with her son at her home, and that on a number of occasions she had heard him in conversation with her son. On the basis of the foregoing she testified the she was able to recognize the defendant's voice. The foundation for her testimony was more than adequate. Commonwealth v. Murphy, 356 Mass. 604, 611, 254 N.E.2d 895 (1970). Commonwealth v. Kendrick, 351 Mass. 203, 213, 218 N.E.2d 408 (1966). Chartrand v. Registrar of Motor Vehicles, 345 Mass. 321, 325, 187 N.E.2d 135 (1963). Mrs. Abruzzese's age (eighty-eight years), the fact that she was not able to relate the substance of what was said, and the fact that she had taken pain-relieving medication that evening, affect the weight, not the admissibility, of the testimony. See Commonwealth v. Guerro, 349 Mass. 277, 282--283, 207 N.E.2d 887 (1965); Commonwealth v. Williams, 105 Mass. 62, 67 (1870). The evidence was properly submitted to the jury.

4. The defendant assigns as error the...