Com. v. Longo

• Decision Date: 08 June 1988
• Citation: 402 Mass. 482,524 N.E.2d 67
• Parties: COMMONWEALTH v. Paul A. LONGO (and two companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 67

524 N.E.2d 67

402 Mass. 482

COMMONWEALTH v. Paul A. LONGO (and two companion cases ¹).

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Feb. 1, 1988.

Decided June 8, 1988.

William P. Homans, Jr., Boston, for Paul A. Longo.

Jane A. Donohue, Asst. Dist. Atty., for Com.

Thomas C. Horgan, Boston, for Richard D. Garthe, Jr., was present but did not argue.

Anthony M. Fredella, Somerville, for Timothy Sullivan, joined in a brief.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and O'CONNOR, JJ.

ABRAMS, Justice.

The defendants, Longo, Garthe, and Sullivan, indicted for murder, were convicted after joint trial of the lesser included offense of assault and battery of Edward Mullan. ² The Appeals Court reversed the convictions, concluding that the defendants' motions for required findings of not guilty should have been granted. The Appeals Court determined that the Commonwealth failed to introduce sufficient evidence of a criminal joint venture. Commonwealth v. Longo, 23 Mass.App.Ct. 518, 503 N.E.2d 1310 (1987). We granted the Commonwealth's application for further appellate review. We affirm the convictions.

In reviewing the denial of the defendants' motions, the Appeals Court accurately summarized the evidence in the light most favorable to the Commonwealth, Commonwealth v. Campbell, 378 Mass. 680, 686, 393 N.E.2d 820 (1979), as follows: ³ "The Commonwealth's principal witness was David John Charles, who, at the time of the criminal event, had been bunking for two weeks with the Harris family (Harris, his wife Debra, and their two children) and Stephen Sullivan in a ground floor apartment at 40 Jones Road, Revere. The adults were in the parlor when about 11:00 P.M., April 7, 1984, the appellants (defendants) Garthe, Longo, and Timothy Sullivan dropped in. Perhaps a half hour later, Randolph Roderick arrived. During the course of the night there was heavy drinking (Charles, however, said he had only two beers) suffused with the smell of marihuana. Roderick left the parlor one or more times to snort cocaine, which he carried in tinfoil.

"Around midnight, Edward Mullan, who had an apartment on the third floor, joined the party, accompanied by a number of his friends. They stayed for an hour or so. At one point, Harris and Mullan had a private meeting, from which they emerged amicably. However, Mullan showed displeasure at the way Longo was approaching Mullan's sister and girlfriend and said he would 'stick his [Longo's] head up his ass.' There was a scuffle between the two; Harris and others separated them. The Mullan party returned to the third floor apartment.

"Longo, wanting to know what Mullan's 'problem' was, started up the stairs of the building with Timothy Sullivan and Charles following. Evidently Longo reached Mullan's door. Turning, he ran down the stairs with Mullan and a few of Mullan's friends in pursuit. As Longo reached the ground floor common hallway, Mullan fell upon him and a ten-minute struggle followed between them, brutal on both sides. Mullan and others returned to the third floor, Longo and others to the parlor. Garthe, a friend of Longo, was angered by Mullan's having gouged and bloodied Longo's eye and said he would get even with Mullan.

"Some twenty minutes after the fight, Mullan and his party left the building. Harris, Garthe, Longo, Timothy Sullivan, and Charles (but not Roderick) mounted the stairs. Charles said he remained on the second floor landing while the others went on. They invaded Mullan's apartment and some or all of them did much damage to the furnishings. When the raiding party returned to Harris's parlor, Garthe was joking about having broken a door by butting it with his head.

"Harris telephoned Mullan's brother, John, from the parlor and Charles heard him say that he had trashed Eddie's apartment and Eddie was next. [Before calling, Harris told the group he was calling Mullan's brother.] About this time Roderick left the apartment and went to his car parked outside No. 40. Charles through a parlor window saw Roderick take a knife from the car. Roderick returned to the parlor carrying the knife, with a seven-inch blade, in his right hand. He placed the knife on the television set. [Charles said that all the defendants were in the parlor when Roderick brought in the knife.] Shortly, Roderick took up the knife, left the parlor, and evidently went into the adjacent bedroom. Charles heard a car pull up in front of the building. He went to the kitchen for a drink of water. Standing at the sink, he heard [Mullan say he wanted to leave, and] Harris, in the interior hall, saying, 'If you want to leave, you got to go through me.' As Charles entered the hall from the kitchen, he saw Mullan doubled over. Roderick, facing Mullan, stabbed Mullan with a knife. Charles heard Mullan say he had enough, he gave up. Mullan fell on his side, his upper body in the parlor, the lower in the hall. At that point Harris was in the hall near Mullan's feet, Garthe stood in the parlor, near Mullan's head. Charles saw Roderick kicking Mullan in the face and yelling at him to get up; he heard Harris say that was enough, and Longo (from the parlor) say he's crazy, or the guy's crazy, or you guys are crazy. Charles, from his place in the hall, had seen Roderick stabbing Mullan but once, and he saw only Harris, Roderick, and Garthe. Longo (whose voice he heard) and, presumably, Timothy Sullivan and Stephen Sullivan, were in the parlor, unobserved by Charles.

"Charles, becoming physically ill, went toward the bathroom. Roderick rushed by Charles and attempted to pass his knife to him. Charles shrank from it. (Roderick was not seen again; he could have left the building through the kitchen.) Emerging from the bathroom, Charles saw Harris and Stephen Sullivan mopping up blood on the parlor floor. Harris asked Charles to help in the cleaning, and called him a wimp when he did not do so.

"Charles went to the street. Roderick's car was not there. Looking to his left, he saw Garthe, Longo, and Timothy Sullivan at a distance of twenty or thirty yards carrying Mullan up Jones Road, two at Mullan's shoulders, the other at his feet. Charles crossed the street. A police cruiser came by. Terrified, Charles discarded a folding knife that he was carrying and ran to his right." Commonwealth v. Longo, supra 23 Mass.App.Ct. at 519-522, 503 N.E.2d 1310.

We summarize the remaining evidence noted by the Appeals Court. A neighbor, awakened at 4:13 A.M. by what she took to be a scream, saw three men at the driveway to No. 52 Jones Road. Before they left, one man kicked something on the ground. Mullan's body was found in the driveway to No. 52 Jones Road. The medical examiner testified that abrasions on Mullan's back were consistent with his having been dragged from No. 40 to 52 Jones Road; their color indicated that Mullan was alive at the time the wounds were inflicted. The cause of death was a stab would to the heart. Id. at 522-523, 503 N.E.2d 1310.

The defendants were charged with murder, as well as with the lesser included offense of assault and battery. The theory of prosecution was joint venture. "The test [for joint venture] is whether each defendant was (1) present at the scene of the crime, (2) with knowledge that another intends to commit the crime or with intent to commit a crime, and (3) by agreement is willing and available to help the other if necessary." Commonwealth v. Bianco, 388 Mass. 358, 366, 446 N.E.2d 1041 (1983). Commonwealth v. Casale, 381 Mass. 167, 173, 408 N.E.2d 841 (1980). Commonwealth v. Soares, 377 Mass. 461, 470, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). The defendants were present at the scene of the crime and in a position to render aid if necessary. The issue, therefore, is their state of mind at the time of the stabbing.

"[T]he jury may infer the requisite mental state [for a joint venture] from the defendant's knowledge of the circumstances and subsequent participation in the offense." Id. "[I]f one is, by agreement, in a position to render aid he is an abettor even if he does not participate ⁴ in the actual perpetration of the crime because his presence may encourage the perpetrator by giving him hope of immediate assistance." Commonwealth v. Casale, supra; Commonwealth v. Soares, supra at 471-472, 387 N.E.2d 499. ⁵ "In order to succeed with the joint venture theory, the prosecution must show that each defendant shared the mental state required [for assault and battery]." Commonwealth v. Funches, 379 Mass. 283, 295, 397 N.E.2d 1097 (1979).

"A person's knowledge or intent is a matter of fact, which is often not susceptible of proof by direct evidence, so resort is frequently made to proof by inference from all the facts and circumstances developed at the trial.... The inferences drawn by the jury need only be reasonable and possible and need not be necessary or inescapable ..." (citations omitted). Commonwealth v. Casale, supra. "The line that separates mere knowledge of unlawful conduct and participation in it, is 'often vague and uncertain. It is within the province of the jury to determine from the evidence whether a particular defendant [has] crossed that line.' " Commonwealth v. Cerveny, 387 Mass. 280, 287, 439 N.E.2d 754 (1982), quoting Commonwealth v. Beneficial Fin. Co., 360 Mass. 188, 250, 275 N.E.2d 33 (1971). "To the extent that conflicting inferences are possible from the evidence, 'it is for the jury to determine where the truth lies.' " Commonwealth v. Wilborne, 382 Mass. 241, 245, 415 N.E.2d 192 (1981), quoting Commonwealth v. Amazeen, 375 Mass. 73, 81, 375 N.E.2d 693 (1978).

Viewing the evidence in the light most favorable to the Commonwealth, Commonwealth v. Campbell, 378 Mass. 680, 686, 393 N.E.2d 820 (1979), we conclude that the jury reasonably could infer the requisite mental state for a joint venture from the circumstances and from the conduct of the defendants. There was evidence of...