Com. v. Hunter

• Decision Date: 27 July 1984
• Citation: 18 Mass.App.Ct. 217,464 N.E.2d 413
• Parties: COMMONWEALTH v. John J. HUNTER.
• Court: Appeals Court of Massachusetts

Page 413

464 N.E.2d 413

18 Mass.App.Ct. 217

COMMONWEALTH v. John J. HUNTER.

Appeals Court of Massachusetts Norfolk.

Argued March 19, 1984.

Decided June 8, 1984.

Further Appellate Review Denied July 27, 1984.

Willie J. Davis, Boston, for defendant.

Linda G. Katz, Asst. Atty. Gen., for the Com.

Before BROWN, DREBEN and WARNER, JJ.

WARNER, Justice.

After a jury trial in the Superior Court, guilty verdicts were returned against the defendant on indictments charging attempted arson of insured property with the intent to defraud the insurer (G.L. c. 266, § 10) and attempted arson (G.L. c. 266, § 5A). The defendant was sentenced to two and one-half years in a house of correction on the first charge and the simple attempted arson indictment was dismissed on the ground that the verdicts were duplicitous. See Commonwealth v. Shuman, 17 Mass.App. 441, 449-451, 459 N.E.2d 102 (1984). The defendant appeals from the denial of a motion for a required finding of not guilty after discharge of the jury and the denial of a motion for a new trial, and claims error in the denial of a jury request for a transcript of the testimony of a witness.

1. The defendant presented motions for required findings of not guilty at the close of the Commonwealth's case, at the close of all the evidence and after the discharge of the jury; each motion was denied. We need only "consider the evidence introduced up to the time the Commonwealth rested its case." Commonwealth v. Kelley, 370 Mass. 147, 150, 346 N.E.2d 368 (1976). ¹ "The sole question raised by the motions is whether 'there was sufficient evidence of the defendant's guilt to warrant the submission of the cases to a jury.' " Commonwealth v. Kelley, supra, quoting from Commonwealth v. Altenhaus, 317 Mass. 270, 271, 57 N.E.2d 921 (1944). "For the purpose of answering this basic question we must consider and determine whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient ... to permit the jury to infer the existence of the essential elements of the crime charged...." Commonwealth v. Sandler, 368 Mass. 729, 740, 335 N.E.2d 903 (1975). Commonwealth v. Kelley, supra at 150 and n. 1, 346 N.E.2d 368. Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). "Additionally, the evidence and the inferences permitted to be drawn therefrom must be 'of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a reasonable doubt.' " Commonwealth v. Latimore, supra at 677, 393 N.E.2d 370, quoting from Commonwealth v. Cooper, 264 Mass. 368, 373, 162 N.E. 729 (1928). "The inferences need not be inescapable or necessary, so long as they are reasonable, possible and not unwarranted because too remote. Convictions may rest entirely or mainly on circumstantial evidence but 'no essential element of the crime may rest in surmise, conjecture, or guesswork' " (citations omitted). Commonwealth v. Walter, 10 Mass.App. 255, 257, 406 N.E.2d 1304 (1980), quoting from Commonwealth v. Kelley, 359 Mass. 77, 88, 268 N.E.2d 132 (1971). "[I]t is not necessary [that the Commonwealth] prove that no one other than the accused could have performed the act. That another might have had such an opportunity goes only to the weight of the evidence, which is a matter for the jury." Commonwealth v. Casale, 381 Mass. 167, 175-176, 408 N.E.2d 841 (1980).

The evidence most favorable to the Commonwealth was as follows. The building at 67-79 Parkingway, Quincy, was a two-story commercial building with a basement. It was occupied by several tenants, including the South Shore Mental Health Center (South Shore) (which sublet space to two other mental health organizations) and LeDisco, Inc., a Massachusetts corporation wholly owned by the defendant, which operated a discotheque, lounge and restaurant known as the California (California). South Shore occupied the entire second floor and part of the first floor and basement. California occupied portions of the first floor and basement, where it had an office and liquor storage room. South Shore used its basement area for a patient record storage room, a room for janitorial and computer supplies and a playroom. South Shore's basement is immediately below the main premises of California. California's storage room was adjacent to South Shore's playroom, and there was a half-door located in a common wall. On the California side of the door were two slide-bolt locks near the top and bottom. Between the locks was an opening for a doorknob. On the South Shore side was a single slide-bolt lock located above the doorknob hole. The locks on both sides of the half-door were normally fastened, and a piece of paper was stuffed inside the doorknob hole. California had access to its portion of the basement by way of a stairway from its main premises. South Shore's portion of the basement was reached by a stairway from a vestibule outside its main premises; the door leading to this stairway was kept locked at all times.

One Francis Cardoza, an employee of one of the sublessees of South Shore, arrived at work at approximately 7:30 a.m. on January 28, 1981, and detected an odor of natural gas. Investigation by Cardoza and others, including firefighters and an arson investigator, revealed the following. One of two locks, a dead-bolt, on the door leading to the stairway to the basement portion of South Shore's premises was unlocked; both had been locked on the previous afternoon. Five persons had access to the keys to the locks on these doors. It was possible to open the door from the basement side without a key even if the door were fully locked. The stairway lights were on, and the previously locked door to the patients' records room had been "jimmied" open with a screwdriver or like instrument. In the playroom there were two lit candles, one on the floor and one wedged between two platform boards. The slide-bolt lock on the South Shore side of the half-door was in an open position, and the two such locks on the California side were in the closed position. The paper which was normally stuffed in the doorknob hole to obstruct vision was missing. California's kitchen stove pilot light was out and the jets turned on, and there was an odor of natural gas in the area. The source of the gas leak was a pipe in the records room of South Shore which led vertically to California's kitchen stove. A cap on this pipe had been removed; the cap had wrench marks on its exterior surface.

It would have taken about four and one-half hours for sufficient gas to escape into South Shore's basement to cause an explosion. Such an explosion would have sufficient force to collapse the walls, ceilings and roof of the building. Between 12 p.m. on January 27 and 2 a.m. on January 28, the assistant manager of California secured its premises, including the basement area. After determining that no one remained on the premises, he activated a burglar alarm system, locked all doors and left. ² No alarm was sounded on January 27 or 28.

Shortly after 8:30 a.m. on January 28, one James Ahearn, who was investigating the source of the gas leak, encountered the defendant and one Arthur Ashton outside the building. Ashton had a cannister of tools containing screwdrivers and "stuff like that." The defendant identified himself as the owner of California and admitted Ahearn to California's premises. Ahearn, in search of the gas leak, went into the kitchen and basement areas; the defendant accompanied him and showed him the location of the gas meter in the basement.

The California is the only tenant in the building serviced by gas. In 1979 there were extensive renovations to California's premises; the main premises were gutted, and substantial work was done in the basement. Ashton, an electrician, was present during the renovations. The defendant is also an electrician.

The defendant was the sole officer, director and stockholder of LeDisco, Inc. In 1979, LeDisco obtained a $35,000 loan from the United States Trust Co. (UST) which was to be repaid in one year and was secured by all of the assets of LeDisco, including a liquor license, and a personal guarantee of the defendant, as well as a second mortgage on real estate owned by him. In addition, the defendant submitted to UST his resignation as officer and director of LeDisco, "effective when accepted." In May of 1980 the payments were two months in arrears, and the loan was rewritten for a two year period at a higher rate of interest. This loan was guaranteed by the defendant and his wife. The payments--in an amount a little more than half of those due on the original loan--were consistently late. The October, 1980, payment was not received until December 8, 1980; as of January 28, 1981, the...