Com. v. Kelley

• Decision Date: 15 April 1976
• Citation: 346 N.E.2d 368,370 Mass. 147
• Parties: COMMONWEALTH v. Kevin KELLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 368

346 N.E.2d 368

370 Mass. 147

COMMONWEALTH

v. Kevin KELLEY.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 1, 1976.

Decided April 15, 1976.

Francis C. Newton, Jr., Boston, for defendant.

Robert M. Buchanan, Legal Asst. Dist. Atty., for the Commonwealth.

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

HENNESSEY, Chief Justice.

The defendant was convicted of the crimes of breaking and entering in the day-time, and larceny of less than $100, after trial by jury in a District Court. The defendant was sentenced to serve three months in a house of correction as to each conviction, with the sentences to be served concurrently. The judge entered an order staying execution of the sentences pending appeal. The appeal is before us on the defendant's bill of exceptions.

The defendant argues two issues: first, that the denial of his motions for directed verdicts as to both complaints was error; and second, that there was error in the denial of his motions for a new trial. We conclude that there was no error and affirm the judgments.

The evidence most favorable to the Commonwealth was as follows. John R. McLean, Jr., a detective with the Sudbury police department, received a call at approximately 11:15 A.M. on July 3, 1974, and went to the residence of Frank J. Vazal at 222 Hudson Road in Sudbury where he entered the house through a screen door leading to a porch at the rear of the house. The door had some scratches near the latch. An inspection of the house revealed that furniture drawers had been opened and items had been pulled from the drawers in various rooms. In opened red-handled greenhouse knife was also found.

Mrs. Vazal, who resides at 222 Hudson Road, had been away from the house from about 10 A.M. to noon on July 3, 1974. She testified that she left the house locked and that she had never seen the red-handled knife before. She described the condition of the premises before and after the burglary. She discovered that two children's banks, a piggy bank and another bank in the shape of a Tootsie Roll, which combined had contained a total of between $10 and $24, were missing.

About 11:15 A.M. on July 3, 1974, two sisters, Denise Dansro and Rene e Dansro, ages fifteen and seventeen, who resided at 221 Hudson Road in Sudbury, across Hudson Road from the Vazal home, saw a maroon 1966 Chevrolet Chevelle automobile turn onto Crestview Drive, a short cul-desac road running off Hudson Road and along one side of the Dansro home. The car turned around at the end of Crestview Drive, returned to a spot near the intersection with Hudson Road, and parked. The driver remained in the vehicle. Because Crestview Drive has little traffic and the car had not stopped near any of the houses on Crestview Drive, the Dansro sisters were curious as to why it was there. Within a few minutes a man carrying a brown paper bag in his arms ran toward Hudson Road down a lightly wooded depression between the Vazal house and a neighboring house on property next door or adjacent to the Vazal property. The Dansro girls were in front of their home and observed him run down to Hudson Road, arriving at a spot about 130 feet from them. Denise was on the lawn and Rene e was a few feet away on the front steps of their house. Each of the sisters, later at the trial, identified the man she had observed as the defendant, Kevin Kelley. Although not certain just how long she had observed Kelley, each girl admitted that it was no more than twenty-five seconds.

As the man ran to Hudson Road, the car turned out of Crestview Drive onto Hudson Road, stopped to pick up the man and sped off. The Dansro girls immediately called the police and provided a description of the men.

Subsequently, one Mulkern was charged by the Sudbury police with having been the driver of the maroon Chevrolet. Thereafter, Detective McLean by chance observed the defendant Kelley in court on another matter with Mulkern. Because Kelley fitted the descriptions given by the Dansro sisters, McLean obtained pictures of Kelley. Approximately a week after the event, McLean showed ten photographs of men selected to resemble each other, including one of Kelley, to each of the sisters at different times, and each picked out Kelley's picture.

At the close of the Commonwealth's evidence motions were made on behalf of the defendant for directed verdicts as to both charges. The motions were denied and the defendant's exceptions were saved.

Thereafter the defendant, and witnesses called by him, presented evidence which was essentially of an alibi nature. This included testimony by the defendant that he did not commit the crimes and that he had never been near the Vazal house in Sudbury. The defendant's motions for directed verdicts were renewed at the close of all the evidence. They were again denied, and his exceptions were again saved.

1. There was no error in the denial of the motions for directed verdicts. On this issue, we consider only the evidence introduced up to the time that the Commonwealth rested its case, and the defendant first filed his motions for directed verdicts. ¹ See G.L. c. 278, § 11. Cf. Commonwealth v. Ferguson, 365 Mass. 1, n. 6, 309 N.E.2d 182 (1974) and authorities cited. But cf. Commonwealth v. Lussier, 333 Mass. 83, 88, 128 N.E.2d 569 (1955). For the different rule in civil cases, see Martin v. Hall, --- Mass. ---, --- - --- ^a, 343 N.E.2d 841 (1976). 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. Altenhaus, 317 Mass. 270, 271, 57 N.E.2d 921 (1944). Commonwealth v. Baron, 356 Mass. 362, 365, 252 N.E.2d 220 (1969). '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, as to each (complaint), to permit the jury to infer the existence of the essential elements of the crime charged in that (complaint).' Commonwealth v. Sandler, --- Mass. ---, --- ^b, 335 N.E.2d 903, 911 (1975).

Applying these standards, we conclude that the motions for directed verdicts were properly denied. Clearly the evidence warranted conclusions that the two crimes of breaking and entering and larceny had been committed; the defendant does not argue to the contrary. His sole contention is that the evidence does not warrant a conclusion that he committed the crimes. We do not agree. The jury could properly rest their verdicts, among other facts, on the evidence of the defendant's presence near the house at a time within that period of a few fours where the jury could find the crimes were committed; the evidence that the defendant ran down between the houses and entered an automobile which had been stationed in what...