Com. v. Mezzanotti

• Citation: 529 N.E.2d 1351,26 Mass.App.Ct. 522
• Decision Date: 29 December 1988
• Docket Number: No. 88-P-439,88-P-439
• Parties: COMMONWEALTH v. Keith MEZZANOTTI.
• Court: Appeals Court of Massachusetts

Page 1351

529 N.E.2d 1351

26 Mass.App.Ct. 522

COMMONWEALTH v. Keith MEZZANOTTI.

No. 88-P-439.

Appeals Court of Massachusetts,

Worcester.

Argued Oct. 7, 1988.

Decided Nov. 7, 1988.

Further Appellate Review Denied Dec. 29, 1988.

Brownlow M. Speer, Committee for Public Counsel Services, for defendant.

Lynn Morrill Turcotte, Asst. Dist. Atty., for Com.

Before GREANEY, C.J., and PERRETTA and WARNER, JJ.

GREANEY, Chief Justice.

A jury in the Superior Court convicted the defendant of burning of a dwelling house (arson). G.L. c. 266, § 1. Represented by new counsel on appeal, the defendant argues that (1) his motions for a required finding of not guilty should have been allowed, (2) the judge's instructions to the jury on malice and joint venture created a substantial risk of a miscarriage of justice, and (3) the denial of his counsel's request to cross-examine Esther Ortiz, the codefendant, who was also convicted of arson, considered together with part of the prosecutor's closing argument, abridged his constitutional right to confrontation. We affirm the conviction.

The evidence in the Commonwealth's case may be summarized as follows.

(a) On June 18, 1986, at 10:02 P.M., fire fighters and police responded to a radio call reporting a fire at 92 Chatham Street in Worcester. Unable to enter the front first floor apartment (the building is a six-family, three story apartment house with three units in the front and three in the back), the fire fighters proceeded to the back first floor apartment and broke in. After entering, the fire fighters heard a hissing sound and smelled a strong odor of natural gas. Upon investigation, the four burners on the gas kitchen stove as well as the gas oven were found to be turned on. One of the burners' jets was lit. All the windows in the apartment had been closed. A fire was discovered burning on the upper shelf of a bedroom closet. Before being extinguished, the fire had consumed portions of papers, books, and newspapers which had been left or placed on the shelf. Part of the closet had been charred. The fire had burned for approximately twenty minutes. Had the gas vapors reached the open flame in the closet an explosion would have resulted.

(b) The tenants of this first floor apartment were the co-defendant, Esther Ortiz, her husband, and their three children. The second floor tenants directly above the Ortiz family were Peter and Cindy Lamb, who also had three young children. The Lambs had moved into the building three months before the fire. At first, the Lambs had been on friendly terms with the Ortizes. About two weeks after moving in, Esther Ortiz told the Lambs that she was having problems with the landlord and that he had obtained an execution for possession of her apartment for nonpayment of rent. Esther Ortiz also told the Lambs that she was going to flood the building or burn the place down if the landlord pursued her eviction. She repeated these threats on several occasions. The Ortizes had been ordered to vacate their apartment by June 19, 1986.

(c) About two weeks before the fire cordial relations between the Lambs and the Ortizes had ended. The falling out occurred after the Lambs turned off the power they had been supplying to the Ortizes by means of an extension cord between the two apartments. Esther Ortiz responded by smashing the glass in the door to the stairway leading to the Lambs' apartment with a club. The Ortizes banged on the building pipes and yelled through the ceiling between the two apartments that the Lambs were all dead. Problems between the Lambs and Ortiz family continued until the fire occurred.

(d) On June 18, 1986, the day of the fire (and the day before the Ortizes were to be evicted), the defendant, along with Esther Ortiz, loaded household items into a station wagon. Around 9:45 that night, the defendant was seen by Peter Lamb in front of the apartment house, getting out of the station wagon and entering the building. According to Lamb, Esther Ortiz remained in the station wagon along with another individual who was unidentified.

(e) After seeing the defendant enter the building, Peter Lamb took a bath. While bathing he thought he smelled smoke. He checked his apartment but found nothing. He sat down to watch the lottery drawing on television at 9:55 P.M. After the drawing, the Peter Lamb again smelled smoke. Upon opening the hallway door Peter Lamb was hit with a "gush" of smoke. He evacuated his family and then returned to advise other tenants that there was a fire. Within minutes, the fire department and police arrived after having been called by Cindy Lamb.

(f) After the fire in the Ortiz apartment had been extinguished, the Lambs, at about 11:30 P.M., were allowed to return to their apartment. They observed the smoke and water damage to their apartment and that the fire fighters had ripped out the baseboard along their living room wall. With the baseboard removed, the Lambs could see through the floor down into the burned closet in the Ortiz apartment. Around midnight, the Lambs heard "voices" in the Ortiz apartment. They went to the place where the baseboard had been removed and overheard two people talking. The Lambs recognized the voices as those of Esther Ortiz and the defendant. Peter Lamb testified that he overheard the following conversation between the two:

PROSECUTOR: "And could you hear what the voices were saying?"

PETER LAMB: "I heard Esther speak up and say, 'Keith'--this is when I found out what his name was--'what are we going to do?'

"Keith had replied, 'Don't worry about it. Keep your story straight. The next time it burns, it will burn right.'

"Then I heard Esther speak up and say, 'Make sure the people upstairs burn with it.' "

PROSECUTOR: "And--"

PETER LAMB: "I heard Keith speak up and say, 'Let's get the hell out of here.' " ¹

The defendant and Esther Ortiz were subsequently seen leaving the apartment.

1. The judge properly denied the defendant's motion for a required finding of not guilty at the conclusion of the Commonwealth's case. Proof of arson is usually based on circumstantial evidence. Whether the jury could find, in this case, that the defendant committed the arson, or assisted in its commission as a joint venturer, depended upon the inferences that could reasonably be drawn from all the evidence. "It is not required that the inferences be unescapable or necessary; it is enough if they are not too remote according to the usual course of events, and if all the circumstances including inferences are of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of incendiarism beyond a reasonable doubt." Commonwealth v. Cooper, 264 Mass. 368, 373, 162 N.E. 729 (1928). See also Commonwealth v. Lanoue, 392 Mass. 583, 589-590, 467 N.E.2d 159 (1984); Commonwealth v. DeStefano, 16 Mass.App.Ct. 208, 215-216, 450 N.E.2d 637 (1983).

Here, elaborate arrangements had been made in the Ortiz apartment in order to start a fire. The oven and gas stove burners had been turned on, the doors locked, the windows closed, and a fire started in the bedroom closet. The hidden location of the fire indicates an intent to prevent its detection long enough to allow the arsonist to escape from the area. See Commonwealth v. Jacobson, 19 Mass.App.Ct. 666, 673, 477 N.E.2d 158 (1985). Further, when the gas reached the flames it would have caused an explosion which could have also damaged the Lambs' apartment. The defendant was seen entering the building alone at the approximate time the fire had been set. He was familiar with the interior of the apartment. Also, he was on friendly terms with Esther Ortiz, who had made repeated threats to burn down the building and strongly disliked the Lambs. It could be inferred from the evidence that the defendant was aware of the feud between the two families. Finally, the conversation between Esther Ortiz and the defendant in the Ortiz apartment soon after the fire had been extinguished permitted an inference that they had jointly participated in the arson.

Under the governing standard, see Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), the evidence allowed the jury to find that the defendant either actively assisted in or was the actual perpetrator of the arson. Although no one piece of evidence alone was enough, considered in combination the circumstances formed a fabric of proof sufficient to warrant the jury's verdict beyond a reasonable doubt. Commonwealth v. Shuman, 17 Mass.App.Ct. 441, 447, 459 N.E.2d 102 (1984). We reject the defendant's arguments that the question of his guilt was left to conjecture or surmise. Specifically, we reject his argument that the Commonwealth's evidence showed only that he may have assisted Ortiz in concealing the arson; a role consistent with the crime of an accessory after the fact for which he was not charged. ²

2. The defendant also contends that there was no adequate perceptual basis for either of the Lambs to claim that they recognized the male speaker's voice in the conversation with Ortiz. See Commonwealth v. Cappellano, 392 Mass. 676, 679, 467 N.E.2d 843 (1984). As such, the defendant argues that admission of the Lambs' testimony about the overheard conversation was error and without that testimony the Commonwealth cannot meet its burden of proof. We disagree.

In the discretion of a trial judge, a voice identification may be considered by a jury as long as the witness expresses some basic familiarity with the voice he or she claims to identify. See Commonwealth v. Williams, 8 Mass.App.Ct. 283, 290-291, 393 N.E.2d 937 (1979); Proposed Mass.R.Evid. 901(b)(5) (1985) ( [i]dentification of a voice, whether heard first hand or through mechanical or electronic transmission or recording" may be made "by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker"). See also United States v. Rizzo, 492 F.2d 443, 448 (2d Cir.1974).

The...