Com. v. Mandile
| Decision Date | 21 July 1988 |
| Parties | COMMONWEALTH v. Richard A. MANDILE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Wendy Sibbison, Northampton, for defendant.
Charles K. Stephenson, Asst. Dist. Atty. (W. Michael Ryan, Dist. Atty., and William J. Larkin, Asst. Dist. Atty., with him), for the Com.
Before HENNESSEY, C.J., and LIACOS, ABRAMS and LYNCH, JJ.
The defendant, Richard A. Mandile, was convicted by a jury of armed robbery and murder in the first degree of Carl A. Valiton, and was sentenced to two consecutive life terms. 1 He challenges these convictions on grounds of (1) insufficiency of the evidence, (2) prosecutorial misconduct, (3) deficiencies in the jury instructions, and (4) judicial abuse of discretion relating to dismissal of the jury foreman. Other contentions relate to duplicative sentencing and principles of double jeopardy relevant only in the event of retrial. Because we conclude that the judgments of conviction must be reversed for lack of sufficient evidence, we address only the first of these issues.
At the close of the Commonwealth's case, the defendant moved for a required finding of not guilty on all indictments. Mass.R.Crim.P. 25(a), 378 Mass. 896 (1978). The judge denied the motions. On review, "we determine whether the evidence offered by the Commonwealth, together with reasonable inferences therefrom, when viewed in its light most favorable to the Commonwealth, was sufficient to persuade a rational jury beyond a reasonable doubt of the existence of every element of the crime charged." Commonwealth v. Campbell, 378 Mass. 680, 686, 393 N.E.2d 820 (1979). "[I]t is not enough for the appellate court to find that there was some record evidence, however slight, to support each essential element of the offense." Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979). Nor may a conviction rest upon the piling of inference upon inference or conjecture and speculation. Commonwealth v. Ferguson, 384 Mass. 13, 18, 422 N.E.2d 1365 (1981).
We summarize the evidence, viewed in this light, as follows. Late in the morning of January 25, 1985, Carl Valiton was found dead in the bedroom of his home in Buckland. He had been shot four times in the head and neck, at close range, with a .22 caliber single action handgun.
On January 23, 1985, the defendant had notified his landlady that he intended to move. During the course of that day and the next, he contacted various individuals who testified that he sought to borrow a gun and money. One witness testified that the defendant also was looking for one Patrick O'Brien.
On the morning of January 25, 1985, the defendant and O'Brien drove from Florence to Goshen in the defendant's automobile. There, at least one of them broke into the home of a correctional officer and stole guns, ammunition, and $50, which had been left on the kitchen table. One of the stolen weapons was the .22 caliber murder weapon. The two men then traveled to Shelburne Falls where one of them purchased a six-pack of beer at 9:46 A.M.
The victim's next-door neighbor testified that she observed the defendant's automobile, with two occupants, pull into the driveway between the Valiton house and her own at about 10:50 A.M. The passenger 2 went inside the victim's house, where he remained for ten to fifteen minutes. The driver stayed in the automobile and turned it around to face the street. From the melting of snow in an area of the driveway, the jury could infer that the engine was left idling. As the passenger returned to the automobile, he had in his possession a round object appearing to the neighbor to be a can of soda or beer.
The victim's sister, who lived upstairs, heard what turned out to be gunshots, discovered the victim's body, and called for assistance. The defendant was arrested early the same afternoon after his automobile was seen parked at a local cafe. At the time of his arrest, he had approximately $730. O'Brien was arrested later that evening; among his effects was approximately $290. 3
The victim was a seventy-two year old retired school custodian who, because of poor health, required assistance in such things as grocery shopping and going to the barber. A friend who frequently provided such assistance testified that, on two occasions, the last of which was about one month before the murder, the victim removed money to pay for the barber from "a little white bag" which he apparently kept in his bedroom. This friend and other witnesses also testified that the victim kept a "donation bowl" on top of the refrigerator. On Sunday mornings, it was the victim's custom to entertain friends and neighbors with cribbage games and beer. The defendant was identified as having been at one such Sunday morning gathering about one month before the murder. After the murder, a single dollar bill was found on the bedroom floor. Money was found in the donation bowl and the victim's wallet was undisturbed. No fingerprints were found on the wallet or on a safe in the victim's home.
Subsequent to his arrest, the defendant made various statements to the police. See Commonwealth v. Mandile, 397 Mass. 410, 492 N.E.2d 74 (1986) (). Among these statements were inconsistent accounts of his activities on the day of the homicide. Specific admissions relevant to the issues on review were that (1) the reason for the trip to the victim's home was to get beer, (2) although he said it was O'Brien who shot the victim, the defendant himself threw the murder weapon into the Connecticut River (from which it was recovered the next day), and (3) the defendant knew that O'Brien was armed when he went into the victim's house.
1. Armed robbery. The indictment for armed robbery was submitted to the jury on the alternative theories that the defendant was the passenger who entered the victim's home and that he was a joint venturer. Under either theory, the question on appeal is whether there was sufficient evidence of an element of armed robbery. 4 We agree with the defendant that the Commonwealth failed to offer evidence from which a rational jury could find beyond a reasonable doubt that money was taken from the victim. 5
It was the Commonwealth's theory that the money found on the defendant at the time of his arrest came from the object of the robbery, the "little white bag." However, notwithstanding the district attorney's arguments to the contrary, there was simply no evidence that the white bag or any other container of money was missing from the victim's home. The Commonwealth offered no testimony regarding an unsuccessful search for the white bag, from which the jury might infer that it was missing. See P.J. Liacos, Massachusetts Evidence 434-435 (5th ed. 1981). Nor was there any testimony tending to prove that the victim kept large sums of money in his home. Indeed, there was no evidence that the victim had a white bag containing money at any time proximate to the alleged robbery. Contrast Commonwealth v. Tabor, 376 Mass. 811, 813, 824, 384 N.E.2d 190 (1978) (). Moreover, the donation bowl and the victim's wallet, where the victim was known to keep money, were untouched, and there was none of the sort of disarray which might provide evidence of a search for valuables.
Relying on cases where, similarly, there was no direct evidence of a loss of money, the Commonwealth contends that, in view of the defendant's need or desire for money during the days preceding the murder and his having the means to commit armed robbery, "[i]t was reasonable for the jury to infer that the contents of [the victim's] white bag explained the defendant's new found wealth." See, e.g., Commonwealth v. McGahee, 393 Mass. 743, 437 N.E.2d 1077 (1985); Commonwealth v. Burnett, 371 Mass. 13, 353 N.E.2d 665 (1976); Commonwealth v. McGrath, 358 Mass. 314, 264 N.E.2d 667 (1970). The major flaw in the Commonwealth's argument is that, in each of the cited cases relevant to the question of a taking, there was circumstantial evidence from which a jury could infer a robbery or attempted robbery. Burnett, McGahee, and McGrath involved commercial establishments, rather than a private residence, a fact from which it is reasonable to infer the routine presence of significant sums of cash. In Burnett, there was evidence of both the amount of money ordinarily in the cash register and an absence of $1 bills, id. at 17-18, 353 N.E.2d 665. In McGahee, the victim was found behind a cash register which was open and depleted. Id. at 750, 437 N.E.2d 1077. Finally, in McGrath, a case in which there was no evidence of a taking, the murder occurred at the end of the business day and the victims' bodies were found near the cash register. Id. at 318-319, 264 N.E.2d 667.
In the instant case, in order to conclude that there was sufficient evidence of a taking, we would have to find such an inference permissible on the basis of motive, means, unexplained possession of funds, 6 and consciousness of guilt. We conclude that, on this record, such evidence is insufficient to permit a rational jury to find beyond a reasonable doubt that money was taken from the victim. Contrast Commonwealth v. Rego, 360 Mass. 385, 390, 274 N.E.2d 795 (1971). The judgment of conviction on the indictment charging armed robbery therefore must be reversed.
2. Murder. The indictment for murder was submitted to the jury on theories of deliberately premeditated homicide with malice aforethought and felony-murder. In addition, the jury were charged on the law of joint enterprise. Although it is clear that the jury were not persuaded that the defendant actually fired the weapon, 7 because the verdict was a general one 8 we cannot otherwise know on which theory or theories the jury found the defendant guilty. Commonwealth v. Matchett, 386 Mass. 492, 511, 436 N.E.2d 400 (1982)...
To continue reading
Request your trial