Com. v. Repoza
| Citation | 414 N.E.2d 591,382 Mass. 119 |
| Parties | COMMONWEALTH v. Richard REPOZA. |
| Decision Date | 09 September 1980 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Paul P. Caradonna, Everett, for defendant.
Kevin C. McLean, Asst. Dist. Atty., for the Commonwealth.
Before HENNESSEY, C. J., and QUIRICO, WILKINS, LIACOS and ABRAMS, JJ.
In the early morning of June 10, 1978, during the violent aftermath of a high school graduation party, John P. Grogan died of a knife wound to his heart. The defendant, Richard Repoza, was apprehended at the scene, was indicted by a grand jury for murder in the first degree, and, on November 2, 1978, following a nine-day jury trial, was found guilty of Grogan's murder in the second degree. On this appeal pursuant to G.L. c. 278, §§ 33A-33G, the defendant assigns a number of errors allegedly committed by the trial judge during the course of the trial, and in addition seeks to invoke the power of extraordinary review given this court by the provisions of G.L. c. 278, § 33E. 1 Neither our review of the defendant's specific assignments of error nor our independent review of the record reveals any error requiring reversal of the defendant's conviction or the entry of a verdict of a lesser degree of guilt.
Although a number of questions regarding Grogan's death remain unresolved or disputed, the outline of the events preceding the killing is relatively clear. On the evening of June 9, 1978, Carlos Vargas hosted a party at his home at 8 Hammond Street, Somerville, to celebrate his graduation from Somerville Technical Trade High School. In addition to his school friends, Vargas invited to the party his steady girl friend, a resident of East Cambridge, and suggested that she invite others. Most of Vargas' guests arrived at about 8 P.M. Somewhat later, a group of about eight Cambridge youths, all of whom learned of the party through Vargas' girl friend, arrived at the Vargas house. About 8:30 P.M., the defendant and a friend, John Cavallaro, both of whom were from Cambridge and friendly with the other Cambridge guests, arrived. In all the party was attended by about fifteen boys from Somerville, six from Cambridge, and a total of sixteen to twenty girls in approximately equal numbers from each city.
The party continued without incident until about midnight. The defendant was "hanging around," dancing, talking, and perhaps watching television, and he caused no trouble. Carlos Vargas had not asked him or any of the Cambridge group to leave.
About midnight, Robert Devereaux of Somerville and Joseph Long of Cambridge became involved in a scuffle in the Vargas dining room. Devereaux thought that Long was bothering some of the girls at the party and tried to stop him. Zenalia Vargas, Carlos' mother, separated the two, and told the crowd that the party was over; she went to the cellar and removed an electrical fuse, thus stopping the music and ending the party. The Vargas house emptied almost immediately into Hammond Street. Carlos Vargas told the group to move away from his house and everyone moved northerly along Hammond Street and turned easterly onto Concord Avenue. Near the intersection of Concord Avenue and Hammond Street, Long and Devereaux resumed their fight, now surrounded by a crowd.
As is perhaps to be expected, the testimony describing the events which followed is somewhat conflicting. The Commonwealth produced four witnesses who testified that the defendant was at the scene of this fight with the knife later identified as the murder weapon. The first of these witnesses was Carlos Vargas. As he watched the fight, Repoza approached him with a knife in his hand, and, standing at about arm's length, said, "No, this is your party," or "This is your party." As Vargas backed away, he was seized from behind by Francis Kelley the first police officer at the scene, and the two began to grapple.
By the time Vargas had been subdued, Grogan had been stabbed. According to Officer Kelley, there was general fighting when he arrived on Concord Avenue. At some point after he arrived, the fight between Long and Devereaux broke up. Long retreated to the stairs of a three-story house diagonally across Concord Avenue from Hammond Street. Also on or near the stairs were the defendant, Robert Devereaux, Richard Trevisone, James Poplawski, and two girls from Cambridge. Both Devereaux and Long testified that while they were on the stairs, Devereaux kicked Long in the face; Long was knocked down from the stairs, and disappeared into the crowd, from which he emerged semiconscious some moments later.
Three witnesses testified to seeing Repoza at the stairs holding a knife. Trevisone testified that while on the stairs, Repoza was holding a knife exposed in his hand. After telling Repoza three times to drop it, Trevisone grabbed him by the left hand and the neck and dragged him into the street. Repoza switched the knife from one hand to the other and offered to fight Trevisone. At this point, Poplawski attempted to intervene, but was struck by Long with a picket torn from a nearby fence. The victim, John Grogan, was also seen fighting in the immediate area. When Poplawski was struck, Repoza and Long, pursued by Poplawski and Trevisone, ran westerly down Concord Avenue toward Beacon Street. Ahead of them, running in the same direction, Grogan was pursuing two other unidentified persons. Trevisone saw Grogan stop, turn around, and punch the person he had chased. With Trevisone some twelve feet behind him, the defendant ran toward Grogan and, drawing abreast of him, struck him once in the left side of the chest with the knife. Repoza then continued his flight. Trevisone stopped momentarily, then resumed his pursuit of Repoza. Near the corner of Beacon Street and Concord Avenue, Trevisone overtook Repoza, and delivered three kicks, one to Repoza's stomach and two to his groin. Trevisone was then jumped from behind and lost the defendant. Seeing a police car turn onto Concord Avenue in front of him, Trevisone ran back to the Vargas house, but after a minute he returned to where Grogan was lying. Trevisone approached one of the police officers present and said, "You have to get him" or "You can get him." Then, accompanied by an officer, Trevisone walked toward Hammond Street. The defendant was at this time handcuffed and sitting in the back seat of a police cruiser; on seeing him Trevisone immediately identified him as Grogan's assailant.
Trevisone was the only witness who testified that he saw the defendant stab Grogan. Significant details of his testimony, however, were corroborated by other witnesses. Poplawski saw Repoza with a knife on the porch of the house on Concord Avenue, and participated in the ensuing chase. He saw Grogan cross onto the sidewalk of Concord Avenue. Poplawski caught Long, knocked him down and kicked him. Looking up, he saw Trevisone, Repoza, and Grogan close together on Concord Avenue; he then saw Repoza "punch" Grogan in the upper chest, and watched Grogan stumble toward him bleeding. Poplawski chased Repoza around the corner of Beacon Street, and saw him throw something to his right near the corner. Poplawski caught Repoza on Beacon Street where both were "grabbed" by Officer Robert F. Hodnett. Thinking that Repoza might escape, Poplawski said to Hodnett, Officer Hodnett escorted both youths back to Concord Avenue and placed them in patrol cars; Poplawski subsequently made a second identification of Repoza.
Officer Michael F. Gaughan and Detective Philip J. Oteri were also at the scene of the fight. Gaughan escorted Trevisone to the cruiser in which Repoza had been placed; both he and Oteri testified that Trevisone positively identified Repoza at that time. Oteri found the knife later identified as the murder weapon in a place consistent with Poplawski's description of where it had been thrown by Repoza. Finally, the Commonwealth presented a resident of Concord Avenue, who, awakened by the noise of the fight, looked out her window in time to see a group of about six persons leave the main group and run toward her house. As they passed her house, Grogan seized his chest, staggered, and fell, bleeding. 2
Repoza did not testify in his own behalf. Two girls from the Cambridge group testified that they were with Repoza immediately after the Long-Devereaux fight, and that they saw no knife. There was also testimony by these two Cambridge girls that following his fight with Long, Devereaux threatened them with a knife. A number of other defense witnesses testified to details of the brawl, which, if believed, might have cast doubt on the account given by the Commonwealth's witnesses. None, however, significantly undermined the central eyewitness testimony given by Trevisone and Poplawski.
1. Evidentiary rulings. Initially, the defendant assigns as error four evidentiary rulings made by the trial judge. These include certain limitations on the defendant's cross-examination of Trevisone, the admission in evidence of a weighted glove found at the scene of the crime, the admission of numerous photographs of the scene, and the admission of certain testimony from Detective Oteri as to Trevisone's on-the-scene identification of the defendant. We discuss these points seriatim; in none do we find any error.
a. Scope of cross-examination. Defense counsel by cross-examination sought to develop certain inconsistencies between Trevisone's description at the trial of the stabbing and a physical demonstration of the incident given by Trevisone at the earlier probable cause hearing. The Commonwealth objected on the ground that the transcript of the probable cause hearing did not adequately reflect the details of the earlier demonstration. After repeated attempts at clarification, including two bench conferences, the court took a twenty-four minute recess. Immediately following the recess, defense counsel elicited from Trevisone...
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