Com. v. Mello

Decision Date17 May 1995
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Wendy Sibbison, Greenfield, for defendant.

Elspeth B. Cypher, Asst. Dist. Atty., for the Com.


NOLAN, Justice.

The defendant appeals from his convictions of murder in the first degree, murder in the second degree, and arson 1 and from the denial of his motion for a new trial based on the alleged ineffective assistance of defense counsel. On appeal, the defendant challenges: (1) the prosecutor's closing argument; (2) the admission of the defendant's confessions; (3) the jury instructions on mens rea; (4) the judge's allegedly undignified remarks and jokes; (5) the effectiveness of defense counsel in failing to investigate the use of an expert, failing to object, and failing to exercise peremptory challenges in the jury selection process; and (6) the convictions of arson and second degree murder as being duplicative. The defendant also asks us to exercise our power under G.L. c. 278, § 33E (1992 Ed.), and reduce the first degree murder conviction to second degree murder.

The jury could have found the following facts. On July 19, 1987, at approximately 4:30 A.M., a fire broke out in a six-family apartment building in Fall River, killing Leonard Starcher and Edward Walsh. Both Starcher and Walsh were tenants in the apartment building. The fire had been started by a "molotov cocktail" thrown in the front porch area of the building. 2

Starcher's apartment had been a "partying" place for a group of young people for some time. The defendant frequented Starcher's apartment, arriving each day at 10 or 11 A.M., and leaving sometime after midnight. While at the apartment, the defendant would consume about a case of beer a day, in addition to ingesting cocaine. Two of the defendant's friends, Domingos Arruda and Nelson Tavares, also frequented Starcher's apartment.

Several days before the fire, the police raided the defendant's home. As a result of the raid, the defendant, his mother, and her boy friend were arrested on drug charges. The defendant told his girl friend that "whoever ratted on him, his home getting raided, they're going to pay for what they did."

On July 18, 1987, the day before the fire, the defendant arrived at Starcher's apartment at 10 A.M., and stayed until 1 A.M. the next morning. During that period of time, the defendant consumed a case of beer, and between 6:30 and 8 P.M., the defendant inhaled three and a one-half bags of heroin. At 11:45 P.M., the defendant spoke with his girl friend. According to his girl friend, the defendant appeared to understand her and had no trouble walking, but appeared "high."

At approximately 1 A.M., the defendant left Starcher's apartment and returned home. At 3:30 A.M., the defendant left his home, and met up with Arruda and Tavares. 3 Arruda told the defendant that Starcher had "ratted him out," and he urged the defendant to do something about it. Arruda suggested that they burn Starcher's house down.

Although he lived only a short distance 4 from Starcher's apartment building, the defendant returned home to retrieve his mother's vehicle. The defendant admitted at trial that he wanted the vehicle so that he could make a "quick getaway." The defendant then picked up Arruda and Tavares, and the three men drove around before finally parking on the corner near Starcher's building.

As the defendant and Tavares waited at the corner, Arruda left on foot and returned with a can of gasoline. Arruda grabbed a glass bottle, and poured the gasoline into the container. The defendant then stuffed a cloth rag in the bottle and lit the wick, and Arruda threw the molotov cocktail into the cement area under the wooden porch of Starcher's apartment building. At trial, the defendant explained how the molotov cocktail had been thrown specifically into the cement area under the porch so that the glass would break and the device would explode.

Once the molotov cocktail hit the porch area, it exploded and the porch caught fire. The defendant's vehicle also caught fire, which the defendant attempted to stamp out with his feet. As the fire continued to burn, the three men jumped into the vehicle and drove away. Realizing that his sneakers were blackened, the defendant drove to a nearby dumpster and threw the sneakers away. He then returned home and instructed his companions, "You guys don't know me and I don't know you." Although many of the residents escaped, Starcher and another tenant in the building, Edward Walsh, died in the fire.

1. Prosecutor's closing argument. The defendant first contends that the prosecutor's closing argument was improper and inflammatory such that a new trial is required. 5 Because there was no objection, the standard of review is whether the prosecutor's argument created a substantial likelihood of a miscarriage of justice. See Commonwealth v. Marquetty, 416 Mass. 445, 450, 622 N.E.2d 632 (1993); Commonwealth v. Kozec, 399 Mass. 514, 518 n. 8, 505 N.E.2d 519 (1987). "We analyze the remarks in 'light of the entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial.' " Commonwealth v. Marquetty, supra, quoting Commonwealth v. Yesilciman, 406 Mass. 736, 746, 550 N.E.2d 378 (1990).

Although we agree that the prosecutor's statements urging the jury to do their duty and render a guilty verdict went beyond the bounds of permissible advocacy, Commonwealth v. Sanchez, 405 Mass. 369, 375, 540 N.E.2d 1316 (1989), we cannot say that in light of the entire argument, the evidence at trial, and the instructions to the jury that the statements created a substantial likelihood of a miscarriage of justice. "The fact that the defendant did not object, '[a]lthough not dispositive of the issue ... is some indication that the tone [and] manner ... of the now challenged aspects of the prosecutor's argument were not unfairly prejudicial.' Commonwealth v. Toro, 395 Mass. 354, 360, 480 N.E.2d 19 (1985)." Id. Further, several of the prosecutor's challenged remarks were in response to the defense counsel's closing argument which invited the jurors to sympathize with the defendant and suggested that society is equally to blame for the defendant's actions. 6 Commonwealth v. Kozec, supra at 519 n. 9, 505 N.E.2d 519 (a prosecutor may properly comment to the extent necessary to correct an erroneous impression created by opposing counsel). In addition, the prosecutor did not urge the jury to disregard the intoxication evidence, rather, the prosecutor properly argued that, although intoxication is to be considered, the evidence in this case demonstrated that the defendant was not so intoxicated as to be incapable of forming the requisite intent. Moreover, the jury were instructed on the effects of voluntary intoxication on the defendant's ability to form the requisite intent, and that they should decide the case solely on the evidence before them. Finally, because there was significant evidence as to the defendant's guilt, we conclude that the prosecutorial error did not create a substantial likelihood of a miscarriage of justice.

2. Admissions of two confessions without a finding of voluntariness. Prior to trial, an evidentiary hearing was held to determine whether the written confessions made by the defendant should be suppressed. The defendant contended in his motion to suppress that the confessions were not voluntary because he was intoxicated at the time he made them. After the hearing, the judge made an express finding denying the defendant's motion, but he failed to make specific findings of fact. 7 The defendant now contends that a new trial should be ordered because the judge admitted the confessions without making a finding that they were voluntary beyond a reasonable doubt.

In Commonwealth v. Fernette, 398 Mass. 658, 663, 500 N.E.2d 1290 (1986), we repeated the well-established standards for review of a trial judge's determination of voluntariness 8 and then stated the following: "If the judge finds that the defendant's statement is voluntary beyond a reasonable doubt, 'that conclusion "must appear from the record with unmistakable clarity." ' Commonwealth v. Tavares, [385 Mass. 140, 152, 430 N.E.2d 1198, cert. denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1356 (1982) ], quoting Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 643, 17 L.Ed.2d 593 (1967)." The Sims decision, involved a situation in which a defendant properly raised the issue of the voluntariness of his confession, conflicting testimony was received on the issue, and the judge failed to rule on the matter at all, leaving the question solely to the jury for their deliberation. Sims v. Georgia, supra at 541, 87 S.Ct. at 641. The United States Supreme Court concluded that error had occurred, indicating that, before a contested confession of a defendant is submitted to a jury, the judge must make a preliminary ruling on the record that the confession is voluntary. Id. at 544, 87 S.Ct. at 643. The Court then noted: "Here there has been absolutely no ruling on that issue and it is therefore impossible to know whether the judge thought the confession voluntary or if the jury considered it as such in its determination of guilt." Id.

This is not the situation in this case. The judge concluded, and expressly ruled on the record, that he had found the defendant's confession voluntary, thereby rejecting the defendant's claims that the confessions were involuntary because of intoxication. We do not accept the defendant's assertion that the judge may not have reached the determination "beyond a reasonable doubt." The judge submitted the issue of voluntariness to the jury, as he was required to do, under comprehensive instructions of law that indicated his awareness of the proper standard of proof. 9 It makes no sense to think that the judge...

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    ...of review is whether the prosecutor's argument created a substantial risk of a miscarriage of justice. See Commonwealth v. Mello, 420 Mass. 375, 649 N.E.2d 1106 (1995); Commonwealth v. Marquetty, 416 Mass. 445, 450, 622 N.E.2d 632 (1993); Commonwealth v. Kozec, 399 Mass. 514, 518 n. 8, 505 ......
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1 books & journal articles
  • Independent state constitutional adjudication in Massachusetts: 1988-1998.
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