Com. v. Martino

• Decision Date: 19 March 1992
• Citation: 412 Mass. 267,588 N.E.2d 651
• Parties: COMMONWEALTH v. Gregory J. MARTINO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 651

588 N.E.2d 651

412 Mass. 267

COMMONWEALTH v. Gregory J. MARTINO.

Supreme Judicial Court of Massachusetts Hampden.

Argued Dec. 2, 1991.

Decided March 19, 1992.

Peter J. Avenia, for defendant.

Ariane D. Vuono, Asst. Dist. Atty., for the Com.

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

GREANEY, Justice.

A jury in the Superior Court found the defendant guilty of murder in the first degree by reason of deliberate premeditation and extreme atrocity or cruelty in connection with the strangulation of his former girl friend. ¹ Represented by new counsel on appeal, the defendant argues a variety of issues. We reject his arguments and discern no basis to grant relief pursuant to G.L. c. 278, § 33E (1990 ed.). Accordingly, we affirm the judgment convicting the defendant of murder in the first degree.

The evidence, viewed in the light most favorable to the Commonwealth, Commonwealth v. Anderson, 396 Mass. 306, 311, 486 N.E.2d 19 (1985), permitted the jury to find the following facts. Approximately six months before the murder, the defendant and the victim, Vivian A. Morrissey, met and became romantically involved to the point where the defendant eventually moved in with the victim and her two children. After the defendant moved in, his relationship with the victim deteriorated. On one occasion, an argument between the defendant and the victim over possession of a videotape ² escalated into a shoving match in which each tore the other's shirt. Eventually, the defendant moved out. Thereafter, the defendant and the victim stayed in contact with one another, but they continued to have difficulties. In particular, the defendant became upset that the victim had begun dating another man. The victim was also concerned because the defendant would not return his keys to her home, and she asked her estranged husband to change the locks on her house. This was done. She also obtained an unlisted telephone number. On September 14, 1987, the victim was granted a restraining order against the defendant. He then obtained a similar order against her. A few days later they agreed to "drop the orders."

On the day of the murder, September 21, 1987, the victim made a telephone call to the defendant at approximately 3:30 P.M. The defendant told her that he had a visitor and asked her to call him back in fifteen minutes, which she did. The defendant recorded this second telephone conversation on a videotape. During the conversation, the victim expressed concern about a number of repairs her house required, and the defendant offered to help her with some of the repairs. The victim also asked whether she could borrow the defendant's typewriter. They arranged for the defendant to visit the victim and her children at approximately 6 P.M. The defendant arrived at approximately 6:30 P.M. and left at some time after 8:30 P.M. He then drove to a tavern in Greenfield to watch a "Monday Night Football" game on television. Several witnesses, including a bartender, saw the defendant at the tavern at some time during the first half of the football game. The game started at 9 P.M., and its second half began at approximately 11 P.M.

The next morning, a regular babysitter for the victim's children (who was also a friend of the victim) arrived at the victim's home. This friend knocked on the back door but no one answered. She could hear the children inside the house and let herself in with a key the victim had given her. The friend fed the children in the kitchen, and noticed a note to the victim from the defendant. ³ Concerned that the victim had apparently left the children alone, the friend made contact with another babysitter who came to house. Sometime after this babysitter arrived, the victim's body was discovered in the basement and help was promptly called.

Officer Raymond Zukowski of the Greenfield police arrived at the victim's home at about 7:40 A.M. Sergeant Norman Roberts of the Massachusetts State police arrived next and went to the basement. He saw a sheet of yellow-lined paper under the victim's right knee. The sheet of paper had a shoe print on one side and the words "I love you Geg [sic ]" on the other side. The words were written in the defendant's handwriting; the shoe print matched the sole of a sneaker owned by the defendant. There was also a pile of wood in the basement near where the body was found, and wood splinters were discovered on the shirt and pants the defendant had worn on the night of the murder. A third note was taken by the police from the defendant's van which read as follows: "I really don't know how to start this. I never wanted or planned to hurt you, it was the farthest thing from my mind, believe me, I do love you, why I'm not showing it anymore, I guess because I...."

The county medical examiner was the next person to arrive. He pronounced the victim dead by strangulation and examined her body. He found three distinct ligature marks on the victim's neck and found a length of rope near the body. This piece of rope was similar to several other lengths of rope discovered by the police at the defendant's home.

Based on the fact that the victim's body was in full rigor, the medical examiner determined that the victim had died approximately twelve hours prior to his examination of her body. A second medical examiner (who was also a pathologist) came to the scene at approximately 10:30 A.M. This physician also estimated that the victim had died twelve to fourteen hours earlier. Further investigation by forensics personnel assigned to the case recovered three hairs from the victim's body. One hair, found in the victim's mouth, was very similar to hair samples taken from the defendant.

1. Sufficiency of the evidence. The defendant argues that at least one of his motions for a required finding of not guilty, which were filed at the conclusion of the Commonwealth's case and at the conclusion of all of the evidence, should have been allowed. He urges that the Commonwealth's case is intrinsically so weak that his conviction rests on nothing more than speculation. The defendant particularly emphasizes his careful refutation of the evidence presented in the Commonwealth's case, maintaining that, at best, the prosecution succeeded only in pointing a finger of suspicion at him.

In reviewing the judge's decision to deny the defendant's motions 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. Commonwealth v. Anderson, 396 Mass. 306, 311, 486 N.E.2d 19 (1985). A conviction may be properly based entirely on circumstantial evidence so long as that evidence establishes the defendant's guilt beyond a reasonable doubt. Commonwealth v. Nardone, 406 Mass. 123, 129, 546 N.E.2d 359 (1989). Commonwealth v. Montecalvo, 367 Mass. 46, 54, 323 N.E.2d 888 (1975).

The prosecution introduced sufficient evidence of the defendant's guilt under these standards. There was no physical or scientific evidence to warrant a finding that the victim had committed suicide. The Commonwealth established both motive and opportunity on the part of the defendant. The defendant acknowledged that he and the victim had fought shortly before the murder and that he was upset because the victim had begun seeing another man. The defendant admitted having been present at the victim's home about the time at which expert medical testimony estimated the murder to have occurred. A note in the defendant's handwriting, and bearing his footprint, was found partially under the victim's body, and other notes written by him could be found to have incriminatory tones. A hair found in the victim's mouth was similar to samples of the defendant's hair. Wood splinters were found on the sleeves of the jacket the defendant wore on the night of the murder, and there was a stack of wood in the basement of the victim's house, near where the body was discovered.

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." Commonwealth v. Merrick, 255 Mass. 510, 514, 152 N.E. 377 (1926). "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). 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. See Commonwealth v. Nardone, supra, 406 Mass. [412 Mass. 273] at 129-130, 546 N.E.2d 359; Commonwealth v. Montecalvo, supra, 367 Mass. at 54, 323 N.E.2d 888. Further, the Commonwealth's position as to proof had not deteriorated at the close of all the evidence. The judge properly denied the defendant's motions for a required finding of not guilty.

2. Pretrial motions. The defendant filed several motions to suppress evidence obtained in connection with his interrogation and arrest, from the search of his house and van, and from his trial counsel. The defendant also filed a motion seeking an evidentiary hearing under the principles discussed in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), asserting that a false statement had been knowingly, intentionally, or recklessly made by the police in an affidavit filed in support of the application for a search warrant for his house. Finally, the defendant moved to dismiss the indictment on the ground that the integrity of the grand jury had been impaired.

The judge held an evidentiary hearing on these motions. The judge's denial of the defendant's motions was accompanied by a very comprehensive and scholarly memorandum of decision. The...