Com. v. Mahoney

• Decision Date: 07 March 1990
• Citation: 550 N.E.2d 1380,406 Mass. 843
• Parties: COMMONWEALTH v. Matthew MAHONEY (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1380

550 N.E.2d 1380

406 Mass. 843

COMMONWEALTH v. Matthew MAHONEY (and a companion case ¹).

Supreme Judicial Court of Massachusetts Middlesex.

Argued Dec. 6, 1989.

Decided March 7, 1990.

Stephen Hrones, Boston, for Matthew Mahoney.

Richard Abbott, for James Santos.

Edward D. Rapacki, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

A grand jury returned indictments against the defendants, Matthew Mahoney and James Santos, and a third man, Douglas Drager, charging them with the murder of Kirk Nilsen. The indictment against Drager was severed from those against the defendants, and the defendants' respective motions for severance from each other were denied. The indictments were put to trial before a jury in the Superior Court. At the conclusion of the Commonwealth's evidence, the judge allowed the defendants' motions for the entry of required findings of not guilty on so much of the indictments as charged murder. The jury were instructed on the elements of manslaughter, and they found each defendant guilty of that crime. The defendants have appealed. We transferred their appeals to this court on our own motion. Santos, represented by new counsel on appeal, argues that the judge erred in denying his motion for a required finding of not guilty on the manslaughter charge, and his motion for a severance. Mahoney, represented by his trial counsel, argues that the judge erred in failing to allow individual voir dire of a juror who indicated on a confidential questionnaire that she had been the victim of a burglary. Both defendants argue that the judge erred in permitting the expert testimony of a chemist, and in excluding counsel from a postverdict interview with a juror who had written a letter to the judge complaining about deliberations. We affirm the judgments of conviction.

There was evidence in the Commonwealth's case of the following. On the night of August 27, 1986, the victim, Kirk Nilsen, the defendants, Mahoney and Santos, Douglas Drager, and several other people were at an apartment in the building at 1235 Middlesex Street in Lowell. The group was drinking beer and Sambuca liqueur, and several members, including the victim, were taking cocaine.

At some point, a fight broke out between Santos and the victim. The fight escalated into what was called a "barroom brawl" as Mahoney, Santos, and Drager began shoving and punching the victim. A witness, Pamela Roberts, saw kicking going on but could not identify who was doing it. The victim asked to be left alone but he was pushed out of the apartment and into the outer hall. Roberts heard banging noises coming from that hall for about ten minutes. Drager returned to the apartment and stated that the victim was "down in the parking lot."

A second witness, Vaughn O'Neill, indicated that she saw the victim pushed back through her apartment door and laid face down on the rug. O'Neill yelled, "Turn him over; he'll aspirate his own vomit." Santos was seen kneeling over the victim putting his hands in the area between the victim's neck and shoulders, and shaking him. According to O'Neill, the victim's head "may have" struck the floor as Santos shook him. O'Neill also heard "banging and cracking" when Santos was standing over Nilsen. Mahoney was seen grabbing a piece of lead crystal and hitting the victim "once or twice" on the left side of his head. After the assault, Drager indicated that he would give the victim a ride home.

The victim's lifeless body was found the next morning by a custodian mowing the lawn of the Digital Equipment plant in Hudson, New Hampshire. A pathologist testified that the victim had been killed by multiple blunt force injuries to his head, neck, and chest.

The foregoing outlines the general picture sketched by the testimony of the Commonwealth's witnesses. Other facts and evidence will be recounted in the discussion of the issues raised by the defendants.

1. The motion of Santos for a required finding of not guilty. Santos argues that his motion for a required finding of not guilty on the manslaughter charge should have been allowed because there was no evidence linking him to the homicide. Santos maintains that the Commonwealth's evidence indicates, at most, that he engaged in a fist fight with the victim, and that there is no evidence to support a finding that he struck the fatal blow or blows. In Santos' view, the case against him is governed by the principle that a guilty verdict cannot be based on conjecture or surmise. See Commonwealth v. Salemme, 395 Mass. 594, 599-600, 481 N.E.2d 471 (1985); Commonwealth v. Fancy, 349 Mass. 196, 200, 207 N.E.2d 276 (1965). We disagree because the evidence, viewed in the light most favorable to the Commonwealth, would warrant a reasonable juror in concluding beyond a reasonable doubt that Santos, acting in concert with Mahoney and Drager, beat the victim to death. Commonwealth v. Latimore, 378 Mass. 671, 676-678, 393 N.E.2d 370 (1979).

Santos' argument overlooks the fact that his culpability for the crime of manslaughter was predicated on the theory that he had participated along with Mahoney and Drager in a 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. Longo, 402 Mass. 482, 486, 524 N.E.2d 67 (1988), quoting Commonwealth v. Bianco, 388 Mass. 358, 366, 446 N.E.2d 1041 (1983). The jury may infer the requisite mental state for a joint venture from the defendant's knowledge of the circumstances and subsequent participation in the crime. Id.

There was evidence in the Commonwealth's case that Santos, the manager of the apartment building in which the incident took place, had argued with the victim the day before the homicide over past-due rent. In the course of the argument, Santos "drop-kicked [the victim] in the head." Santos later told someone about the confrontation and said he "wouldn't be surprised" if the victim ended up in the hospital as a result of the attack. The next day, Santos told the victim that he owed four nights' rent and that he wanted to see him "tonight."

There was further evidence that Santos was in a position at the scene of the crime to give assistance to Mahoney and Drager and that he was actively involved in the savage beating the victim received. Specifically, Santos was observed inside the apartment punching the victim, continuing the attack on the victim into the outer hallway, then gripping the victim between the neck and shoulders and shaking him. There was testimony that, as Santos stood over the victim, a "cracking" sound was heard. The nature of the victim's ultimately fatal injuries was described in detail by a forensic pathologist. ² The pathologist also testified that digested material was found in the victim's stomach and that his head injuries and high blood alcohol could have caused him to vomit. There was expert testimony by a chemist that vomit stains were detected on Santos' sneakers, as well as the victim's shirt and the rug in the hallway. There was additional evidence that Santos had given false statements to the investigating police officer, a fact which permitted the jury to draw an inference of consciousness of guilt on the part of Santos.

It was not necessary for the Commonwealth to establish that Santos struck the fatal blow or blows. ³ Rather, the Commonwealth's evidence was sufficient to warrant findings by the jury that Santos, Mahoney and Drager had joined together to administer a vicious beating to the victim, and that the three knew, or should have known as the beating progressed, that the victim could suffer grave injury or death. The Commonwealth's evidence therefore was sufficient to justify the jury in convicting Santos of manslaughter.

2. Severance. Santos also argues that his motion to sever his trial from Mahoney's should have been allowed because his defense and Mahoney's were mutually antagonistic and irreconcilable. To support his contention, Santos relies upon our decision in Commonwealth v. Moran, 387 Mass. 644, 651-661, 442 N.E.2d 399 (1982). The Moran decision does not apply to this case.

"In this Commonwealth severance is usually a matter within the sound discretion of the trial judge.... Joinder expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice time and energy to serve upon juries, and avoids the necessity of recalling witnesses to successive trials.... Such considerations, however, must yield at some point to the rights of the accused. That point is reached when the prejudice resulting from a joint trial is so compelling that it prevents a defendant from obtaining a fair trial. In such circumstances, and upon the making of a timely motion, failure to sever constitutes an abuse of discretion." (Citations omitted.) Commonwealth v. Moran, supra at 658, 442 N.E.2d 399.

Moran involved a situation that went well beyond inconsistent trial strategies among defendants. In Moran, "the Commonwealth introduced convincing evidence that at least one defendant, but not necessarily both of them, robbed and killed [the victim]. The only realistic escape for either defendant was to blame the other.... [The two defendants'] defenses were mutually antagonistic and irreconcilable. The prejudice to each defendant was compelling. Tried together, neither defendant could have a fair trial." Id. at 659, 442 N.E.2d 399. In this case, by comparison, while Santos tried to downplay his involvement in the incident, he and Mahoney chose not to blame each other. Both decided to place the major blame for the crime on Drager. ⁴ By pursuing that strategy, both defendants substantively shared a common...