Com. v. Lydon

• Decision Date: 29 July 1992
• Citation: 413 Mass. 309,597 N.E.2d 36
• Parties: COMMONWEALTH v. James M. LYDON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 36

597 N.E.2d 36

413 Mass. 309

COMMONWEALTH v. James M. LYDON.

Supreme Judicial Court of Massachusetts Suffolk.

Argued May 7, 1992.

Decided July 29, 1992.

Wendy Sibbison, Greenfield, for defendant.

Vincent R. McDonough and Francis A. O'Meara, Asst. Dist. Attys., for the Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

LYNCH, Justice.

The defendant was convicted of murder in the first degree and of unlawful possession of a firearm. He filed postconviction motions for a new trial and for interviews of jurors and an amended motion based on ineffective assistance of counsel. A single justice of this court remanded the motions to the Superior Court for findings and hearing and ordered a stay of the appellate proceedings. After a hearing, a Superior Court judge made findings of fact and rulings of law and denied the defendant's amended motion. The defendant appealed. We reverse the conviction of murder in the first degree and remand this case to the Superior Court for a new trial. We affirm the conviction of unlawful possession of a firearm.

There was evidence from which the jury could have found the following pertinent facts: Shortly after 2 A.M. on August 22, 1985, Hubert James Crowe was shot seven times and died as a result. Residents of the area heard the gunshots. One witness saw the victim's body seconds after the gunshots, and also saw a person running away from the victim's body and getting into the front passenger side of an automobile which pulled up below her apartment window. She was unable to determine the color of the vehicle, but asserted that the vehicle reminded her of her father's "old convertible Buick." A police cruiser arrived at the scene. The police officer who had heard the gunshots testified that he saw a large red automobile with a light top, carrying two males, come out of Dorchester Street in the South Boston section of Boston, turn onto East Broadway and head up the hill. The officer drove into Dorchester Street, saw the victim's body, and turned around to pursue the red automobile. Eventually, the officer spotted a 1973 red and white Buick and, with the cruiser's blue lights on, gave chase. The automobile picked up speed and fled. When it was stopped, the defendant was in the front passenger seat. Both the defendant and the driver of the automobile were placed under arrest. A search of the automobile revealed no incriminating evidence. Retracing the route of the chase, the officer found a gun which was later determined to be the murder weapon and other evidence, but the officer had not seen anything thrown from the vehicle while he was chasing it. The defendant was read his Miranda rights at his booking at approximately 2:40 A.M. At approximately 7 A.M., a criminalist arrived at the station, where the defendant was being held, to test for the presence of barium and antimony on the hands of both the defendant and the other occupant of the automobile. The defendant refused to take the test and stated he wanted to talk with his attorney. ¹ Prior to trial, numerous pieces of evidence were lost. Two or three weeks before the shooting the defendant and the victim were in the "Powerhouse Pub" where they were both "regulars." After the victim, who was a dealer, sold cocaine to someone at the bar, the defendant said to the victim, "You better enjoy it now ... You won't be for long." Both the defendant and the victim were seen at the pub on the night of the shooting.

1. Required finding of not guilty. At the close of the Commonwealth's case, the defendant moved for a required finding of not guilty, which was denied. The defendant argues that the judge committed error as no rational trier of fact could conclude that the defendant either shot the victim or was a joint venturer in the shooting of the victim. We disagree. The defendant's arguments are in substance directed toward the weight and credibility of the evidence, "a matter wholly within the province of the jury." Commonwealth v. Martino, 412 Mass. 267, 272, 588 N.E.2d 651 (1992).

The evidence is viewed in the light most favorable to the Commonwealth. Commonwealth v. Merola, 405 Mass. 529, 533, 542 N.E.2d 249 (1989). Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979). "In reviewing the judge's decision to deny the defendant's motion[ ] for a required finding of not guilty, we inquire whether the evidence, considered in the light most favorable to the Commonwealth, was sufficient to satisfy a reasonable jury of each element of first degree murder beyond a reasonable doubt ... A conviction may be properly based entirely on circumstantial evidence so long as that evidence establishes the defendant's guilt beyond a reasonable doubt." (Citation omitted.) Commonwealth v. Martino, supra 412 Mass. at 271-272, 588 N.E.2d 651. "The relevant question is whether the evidence would permit a jury to find guilt, not whether the evidence requires such a finding." Commonwealth v. Brown, 401 Mass. 745, 747, 519 N.E.2d 1291 (1988). Only the evidence presented by the Commonwealth is considered when answering this question. Commonwealth v. Kelley, 370 Mass. 147, 150, 346 N.E.2d 368 (1976). "In cases in which the evidence is largely circumstantial, 'it is not essential that the inferences drawn should be the only necessary inferences.... It is enough that [the inferences] be reasonable and possible.' ... 'To the extent that conflicting inferences are possible from the evidence, "it is for the jury to determine where the truth lies." ' " (Citations omitted.) Commonwealth v. Martino, supra 412 Mass. at 272, 588 N.E.2d 651.

The Commonwealth introduced sufficient evidence of the defendant's guilt of murder in the first degree under these standards. ² The Commonwealth presented evidence that the defendant and the victim were regulars at the Powerhouse Pub. Two or three weeks before the shooting, the defendant threatened the victim. Witnesses saw both the defendant and the victim in the pub on the night of the victim's death. Seconds after the sound of gunfire, witnesses testified to seeing an automobile matching the description of the automobile in which the defendant was subsequently found and arrested, and which had been entrusted to him. One witness also saw a person enter the passenger side of such an automobile shortly after the sound of gunfire. When the defendant was apprehended, he was sitting on the front passenger side. Shortly after the shooting, an officer found and followed the automobile; when the officer activated his siren, the automobile fled, indicating consciousness of guilt, and did not stop until surrounded by police vehicles. The gun which killed the victim was found at a bridge along the chase route. A note found in a bag with the gun contained the name and telephone number of the business agent of the defendant's union.

The judge properly denied the defendant's motion for a required finding of not guilty.

2. Refusal evidence. The defendant argues that the judge erroneously allowed the Commonwealth to introduce evidence of the defendant's refusal to have his hands swabbed. We agree. The issue under the Massachusetts Constitution was not clearly raised at trial. Thus, we review to determine whether the error created a substantial likelihood of a miscarriage of justice. Commonwealth v. Dias, 405 Mass. 131, 137, 539 N.E.2d 59 (1989). Commonwealth v. Oakes, 407 Mass. 92, 94-95, 551 N.E.2d 910 (1990). In view of the circumstantial nature of the Commonwealth's case, we conclude that a substantial likelihood of a miscarriage of justice occurred on the murder conviction.

Article 12 of the Declaration of Rights of the Massachusetts Constitution provides in part that no person shall "be compelled" to accuse or to furnish evidence against himself. The Justices recently advised that a statute making evidence of a person's refusal to take a breathalyzer test admissible in a trial for operating under the influence would be unconstitutional. Opinion of the Justices, 412 Mass. 1201, 591 N.E.2d 1073 (1992). The Justices' reasoning in that opinion applies here. "Although the privilege against self-incrimination under art. 12 is broad, it protects only against the compulsion of communications or testimony and not against the production of real or physical evidence, such as fingerprints, photographs, lineups, blood samples, handwriting, and voice exemplars. Commonwealth v. Brennan, [386 Mass. 772,] 776, 780 [438 N.E.2d 60 1982]. By contrast, testimonial evidence which reveals a person's knowledge or thoughts concerning some fact is protected. Id. at 778 ." ³ Opinion of the Justices, supra 412 Mass. at 1208, 591 N.E.2d 1073. "In the ordinary case a prosecutor would seek to introduce refusal evidence to show, and would argue if permitted, that a defendant's refusal is the equivalent of his statement, 'I have had so much to drink that I know or at least suspect that I am unable to pass the test.' ... An involuntary statement to that effect by the defendant could not be used against him. At common law out-of-court conduct, which by intent or inference expresses an assertion, has been regarded as a statement and therefore hearsay if offered to prove the truth of the matter asserted.... It follows, therefore, that evidence of a person's thought process, if offered to show that the person had doubts about his ability to pass the test, would be testimonial." (Citations omitted.) Id. at 1209, 591 N.E.2d 1073.

In this case, the jury were instructed that the evidence of refusal was limited to evidence of "consciousness of guilt." If the fact that the defendant refused to allow the hand-swabbing demonstrates consciousness of guilt, such refusal rises to the level of a self-accusation. It can be consciousness of guilt only if offered to show that the defendant had doubts about his ability to pass the test. The evidence is not materially different from evidence of refusal to take a breathalyzer test. In...