Com. v. Merola

Citation405 Mass. 529,542 N.E.2d 249
PartiesCOMMONWEALTH v. Albert P. MEROLA.
Decision Date08 August 1989
CourtUnited States State Supreme Judicial Court of Massachusetts

Eileen D. Agnes, Framingham, for defendant.

Ann E. Rascati, Asst. Dist. Atty., for Com.

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

ABRAMS, Justice.

Convicted of murder in the first degree on the ground of extreme atrocity or cruelty in the death of an eighteen-month-old boy named Donald, 1 the defendant, Albert P. Merola, appeals. The defendant argues that the judge erred in (1) denying the motion for a required finding of not guilty; (2) denying the motion to allow use of confidential Department of Social Services (DSS) records; (3) his evidentiary rulings; and (4) the instructions to the jury. The defendant also asserts that his trial counsel was ineffective. The defendant asks that, in the event we reject his claims of error, we exercise our power under G.L. c. 278, § 33E (1988 ed.), and order a new trial or, alternatively, that we reduce the verdict to a lesser degree of guilt. We affirm. We decline to exercise our power under G.L. c. 278, § 33E, in favor of the defendant.

We summarize the evidence in the light most favorable to the Commonwealth. Commonwealth v. Cordle, 404 Mass. 733, 734, 537 N.E.2d 130 (1989). The victim, Donald, was alive and well on August 26, 1984. He spent part of the day in the back yard of his home in Hull, with his mother, Abigail; his older sister (age nine); one of his older brothers (age five); the defendant; some neighbor children; and a friend of Abigail named Stacey. The defendant was Abigail's boy friend at that time; at the time of trial, they were engaged to be married. Donald played in a wading pool with the defendant for well over one hour. The child showed no signs of dizziness, incoordination, or paralysis. He did not vomit and did not appear to be suffering pain. The child appeared much as usual.

At approximately 3 P.M., Abigail and her family, Stacey, and the defendant went into Abigail's apartment. Stacey served the older children lunch while Abigail went to take a shower and the defendant took Donald and put him to bed for a nap. Donald usually slept on a mattress and box spring placed on the carpeted floor of his room. In the meantime, James, a neighbor, came in to use the telephone in the living room. The defendant did not reappear in the living room or kitchen where Stacey was until about 3:40 P.M., when he came down the hallway bearing Donald's limp body. He was followed by Abigail, who was naked, dripping wet, holding a towel in front of her, and screaming. The defendant said that an ambulance was needed and that Donald was not breathing.

A fire fighter, Gary Fleck, arrived within minutes and found Abigail on the porch of her house holding Donald. Finding no vital signs, Fleck began mouth-to-mouth resuscitation on the child. Donald was dressed only in a diaper. There were no wounds, cuts, or blood on his body. Fleck and another firefighter continued to perform mouth-to-mouth resuscitation and cardiopulmonary resuscitation (CPR) on the way to the hospital, and succeeded in restoring the child's breathing for two short intervals. The child was breathing when he arrived at South Shore Hospital. The defendant and Abigail arrived shortly thereafter. Abigail was "hysterical"; the defendant was calm, "laid back and chain smoking," and supportive of Abigail.

Nurse Dorothy Blanchard observed Donald in the emergency room and later in the intensive care unit. She saw bruises on the child's left forehead and left chin, in the rectal area, and on the left side of his abdomen. The emergency room record also notes bruises on the base of the spine, on the scalp over the left eyebrow, and on the left cheek and chin. There were red round marks on the upper buttocks and on the base of the spine. The record also noted a rash in the rectal area and a grapefruit-sized bruise on the left lower abdomen. A police officer observed bruises on the child's left leg.

The child continued to breathe with mechanical assistance following admission to the hospital, and remained semi-comatose. Diagnostic tests revealed massive swelling of the brain, particularly on the left side. The physicians who examined Donald expressed the opinion that he had suffered a closed head injury (i.e., one in which the brain was injured although the skull was intact) caused by either blunt force or shaking, or both. Either type of injury would have required the application of force equivalent to a fall from a third-story window or a severe motor vehicle accident. Such an injury would be likely to render a patient unconscious within moments. Donald lived in a comatose condition for three days and died on August 29. Postmortem examination showed that he died of massive brain swelling and subdural hematoma (collection of blood between the brain and the skull) consistent with blunt force or shaking.

The police officer examined the family apartment and questioned the defendant shortly after midnight, i.e., in the early hours of the day following Donald's admission to the hospital. The officer noted that the mattress and box spring in Donald's room together were thirteen to fourteen inches high and that the carpeting was soft. There was no blood nor any other evidence of violence. The defendant told the officer that he had noticed the bruise on Donald's leg but he denied having seen any other bruises. The defendant told the officer that he had been watching television in the living room after putting Donald to bed that afternoon. He started down the hall toward the bathroom where he intended to join Abigail. As he passed Donald's room, he heard a thud. He opened Donald's door and saw Donald on the floor. The child was not breathing. The defendant picked him up, attempted to administer CPR, and brought the child into the bathroom where the child's mother was taking a shower.

1. The motion for a required finding of not guilty. The defendant argues that the evidence, viewed in the light most favorable to the Commonwealth and taken together with permissible inferences, is insufficient to establish the defendant's guilt beyond a reasonable doubt. He argues, therefore, that the judge erred in denying his motion for a required finding of not guilty. We do not agree.

"[T]he question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). See Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979). The issue is whether the evidence, including reasonable inferences from that evidence, is "sufficient to permit a rational jury to find beyond a reasonable doubt that the defendant had committed murder in the first degree." Commonwealth v. Rojas, 388 Mass. 626, 629, 447 N.E.2d 4 (1983). "[I]t is not necessary to prove that no one other than the accused could have performed the act." Commonwealth v. Casale, 381 Mass. 167, 175, 408 N.E.2d 841 (1980). However, "[t]he question of guilt must not be left to conjecture or surmise." Commonwealth v. Anderson, 396 Mass. 306, 312, 486 N.E.2d 19 (1985). Mere opportunity to commit the crime or presence at the scene of the crime without other evidence is insufficient. See Commonwealth v. Cordle, 404 Mass. 733, 734, 537 N.E.2d 130 (1989). Circumstantial evidence is competent to establish guilt beyond a reasonable doubt. Commonwealth v. Nadworny, 396 Mass. 342, 354, 486 N.E.2d 675 (1985), cert. denied, 477 U.S. 904, 106 S.Ct. 3274, 91 L.Ed.2d 564 (1986), and cases cited. An inference drawn from circumstantial evidence "need only be reasonable and possible; it need not be necessary or inescapable." Commonwealth v. Beckett, 373 Mass. 329, 341, 366 N.E.2d 1252 (1977). "The Government ... need not exclude every reasonable hypothesis of innocence, provided the record as a whole supports a conclusion of guilt beyond a reasonable doubt." See United States v. Systems Architects, Inc., 757 F.2d 373, 377 (1st Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 115 (1985). We conclude the evidence is sufficient and that there was no error in the denial of the defendant's motion.

The main evidence against the defendant was the medical evidence. From the medical evidence the jury could have concluded that after sustaining the injury to his brain, Donald "would be in great distress" and would lose consciousness. Such symptoms would occur within "[m]oments, probably, if not seconds," after the head injury was sustained.

The defendant took Donald, alive and well, to Donald's bedroom around 3 P.M. The defendant did not reappear until 3:40 P.M. when he carried the unconscious child first to the bathroom and then to the living room. The defendant told the police 2 that he told Donald to go to bed, then left him and went to watch television in the living room, and that he left the living room only moments before he started down the hall and found Donald unconscious. Stacey and James were in the living room at that time and both stated that the defendant was not there. Stacey stated that the defendant told her he was in the shower with Abigail during that time. Abigail stated the defendant was not in the shower with her at that time.

Medical testimony indicated that severe forces had been exerted on the child. 3 Donald also had other, older bruises on his body. When interrogated by police, the defendant denied seeing any bruises on the child's body. A jury could infer that the defendant made false statements to the police, that he lied about his observations of other bruises on Donald's body, and that these lies were evidence of the defendant's consciousness of guilt.

Although...

To continue reading

Request your trial
161 cases
  • Commonwealth v. Andrade
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • October 5, 2021
    ...of the expert testimony, or that, had the testimony been excluded, the result would have been different. See Commonwealth v. Merola, 405 Mass. 529, 545, 542 N.E.2d 249 (1989) ("The scope and fullness of hypothetical questions must be left to [the] discretion of the trial judge" [citation om......
  • Commonwealth v. Bonner
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 7, 2022
    ...were not required to accept the defendant's explanation of how he came to kick the victim in the head. See Commonwealth v. Merola, 405 Mass. 529, 533-534, 542 N.E.2d 249 (1989) (prosecution was not required to "exclude every reasonable hypothesis of innocence, provided the record as a whole......
  • Com. v. Tart
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • August 8, 1990
    ...of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis in original). Commonwealth v. Merola, 405 Mass. 529, 533, 542 N.E.2d 249 (1989), quoting Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979). In the present case, the Commonweal......
  • Com. v. Morgan
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 15, 2007
    ...Mass. 729, 740, 335 N.E.2d 903 (1975). The Commonwealth may submit a case wholly on circumstantial evidence. Commonwealth v. Merola, 405 Mass. 529, 533, 542 N.E.2d 249 (1989). "Additionally, the evidence and the [permissible] inferences . . . must be `of sufficient force to bring minds of o......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT