Com. v. Rhoades

• Decision Date: 19 February 1980
• Citation: 401 N.E.2d 342,379 Mass. 810
• Parties: COMMONWEALTH v. Ronald RHOADES, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 342

401 N.E.2d 342

379 Mass. 810

COMMONWEALTH v. Ronald RHOADES, Jr.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 5, 1979.

Decided Feb. 19, 1980.

Willie J. Davis, Boston, for defendant.

Stephen M. Needle, Asst. Dist. Atty. (M. Ashley Brown, Legal Asst. to the Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, WILKINS and ABRAMS, JJ.

ABRAMS, Justice.

Pursuant to G.L. c. 278, §§ 33A-33G, the defendant Ronald Rhoades, Jr., appeals three convictions of murder in the second degree on three indictments which charged murder in the first degree, a fourth conviction of murder in the second degree on an indictment which charged second degree murder, and a conviction of arson. Rhoades argues assignments of error concerning (1) the denial of his motions for directed verdicts of not guilty; (2) the admission of certain expert testimony; (3) the admission of testimony suggesting that Rhoades had been present at other disasters; (4) the refusal of the judge to put additional questions to potential jurors on voir dire; and (5) the judge's instructions to the jury. ¹

We conclude that Rhoades' conviction of arson, and three of his four convictions of murder in the second degree should be affirmed. We accept, however, Rhoades' argument that the charge to the jury regarding the fourth murder indictment failed to describe adequately the causal connection which must exist between a defendant's act and a person's death in order for the Commonwealth to obtain a conviction on the theory of felony murder. We therefore reverse this conviction. See G.L. c. 278, § 33E; note 12, infra. We have also considered the balance of the record pursuant to our responsibilities under G.L. c. 278, § 33E, and find that there is no reason to exercise our discretion to order a new trial or a reduction in sentence on any of Rhoades' remaining convictions of murder in the second degree. ²

We summarize the evidence. Santos Velasquez Murillo (Velasquez) and his family occupied the first floor apartment at 174 Pearl Street, Chelsea. The apartment was located in a three story complex with three apartments on each side. The building was numbered 172-174 Pearl Street.

On December 31, 1977, Velasquez was at home taking care of his infant daughter. Between 9 and 9:30 P.M., Rhoades arrived at Velasquez's apartment. Rhoades was not expected and had not been invited to the apartment. Approximately three weeks earlier, however, Rhoades had stayed overnight at the Velasquez apartment. ³ Velasquez showed Rhoades into his living room and offered the defendant a beer. The men sat together in the living room; however, since Rhoades spoke no Spanish and Velasquez only very little English, there was little or no conversation between them. Rhoades drank two or three beers.

At approximately 10:30 P.M., Vasquez, a friend of Velasquez, arrived at the apartment. Velasquez and Vasquez had some conversation in Spanish but neither one conversed with Rhoades. At 10:55 P.M. Rhoades stated that he was going to the bathroom and asked for a cigarette. He took one, the first he had smoked that evening, from Velasquez's pack on the coffee table and lit it with Velasquez's lighter. The cigarette was the only thing in the defendant's hand as he left for the bathroom. Neither Velasquez nor Vasquez saw Rhoades again that evening.

The bathroom in the Velasquez apartment was located near the front door to the apartment. Rhoades knew where it was, due to his visit to the apartment three weeks earlier. On a shelf on the wall opposite, rather than next to, the toilet, stood a bottle of rubbing alcohol approximately six inches high and one-half to three-quarters full. The bottle had been in the bathroom at the time of Rhoades' visit three weeks earlier. When last seen on the night of the fire, the bottle, which was plastic, was capped. Finally, on the linoleum floor of the bathroom, were some dirty clothes and a plastic tub of diapers.

Approximately five minutes after the defendant left the living room, Vasquez smelled smoke, and Velasquez then saw flames. The smoke and fire prevented them from leaving by the front doorway. Vasquez therefore broke a window in the baby's bedroom and escaped. Velasquez woke his sleeping child, handed her out the window to his friend, and climbed out himself.

Shortly before the fire broke out, Paul Capozzi was standing on the steps outside the entrance way to number 172, waiting for his mother to return home to her second floor apartment on the number 172 side of the building. Capozzi saw the defendant come out of number 174 and turn right onto Pearl Street, walking at a "little faster" than normal pace. Rhoades passed within an arm's length of Capozzi, and proceeded to the corner of the block. After disappearing from sight for approximately one minute, Rhoades reappeared, walking back up Pearl Street, to a position in front of a garage, directly across from number 172-174. The defendant paused briefly, before proceeding at a normal or slightly slower than normal pace down the street to the opposite corner of the block, finally returning to stand across the street in front of the garage once again. At this point, Capozzi, diverted by the fire which had broken out at number 174, lost track of the defendant's movements.

Walter Juskiewicz was babysitting for three children, Michael and Dennis Elliot (ages 3 and 4) and Shawn Marceau (4 months), in the second floor apartment directly above the Velasquez residence. Shortly after 11 P.M., Cathy Capozzi was outside 173 Pearl Street, across the street from her mother's apartment. She saw Walter Juskiewicz come to the second floor window at number 174, yelling for help. He dropped the baby Shawn to persons below, and disappeared from view. During the course of the fire, Juskiewicz and the two Elliot children perished due to asphyxia caused by smoke inhalation.

The first alarm for the three alarm blaze was sounded at 11:03 P.M. Among the firefighters responding to the second alarm was Captain James Trainor. When Trainor entered the burning building in an attempt to rescue persons thought to be trapped inside, he was outfitted in standard firefighting gear: rubber coat, helmet, boots and a self-contained breathing apparatus. The temperature outside was in the 20's. Attempting to assist those fighting the fire, Trainor encountered intense heat and thick smoke, and experienced difficulty in getting air through his face mask. While on the roof of the building, Trainor collapsed; taken to a hospital in Everett, he was pronounced dead on arrival. The Commonwealth's medical expert concluded that the combination of cold weather, stress, and smoke inhalation precipitated the coronary thrombosis which caused Trainor's death.

On January 3, 1978, two Chelsea police detectives and a member of the State police, all in civilian clothes, went to Rhoades' residence to question him concerning the fire at 172-174 Pearl Street and to arrest him on a warrant charging Rhoades with non-support. Shortly after two of the officers appeared at Rhoades' third floor apartment and spoke to Rhoades' wife, the defendant walked out of a ground floor rear door being watched by the third officer. When this officer identified himself, Rhoades, who was separated from the detective by a five foot fence, began running away. Rhoades was arrested at gun point.

Experts concluded that the fire was set. Further they found that the fire began in the bathroom of the Velasquez apartment, that an accelerant was used to start the fire (presumably the rubbing alcohol), that the accelerant had to be ignited by an open flame, and that an accidently dropped cigarette was insufficient to ignite the accelerant or to start the fire.

1. Directed verdict. At the close of the Commonwealth's case, the defendant moved for directed verdicts of acquittal. "In reviewing the denial of a motion for directed verdict, we consider only the evidence introduced up to the time the Commonwealth rested its case." Commonwealth v. Borans, --- Mass. ---, --- ^a, 393 N.E.2d 911, 922 (1979). Commonwealth v. Kelley, 370 Mass. 147, 150, 346 N.E.2d 368 (1976). We must determine whether the Commonwealth's evidence "considered in its light most favorable to the Commonwealth, was sufficient to permit the jury to infer the existence of the essential elements of the crime charged," Commonwealth v. Dunphy, --- Mass. ---, --- - --- ^b, 386 N.E.2d 1036, 1038 (1979), and "to bring minds of ordinary intelligence and sagacity to the persuasion of . . . (guilt) beyond a reasonable doubt." Commonwealth v. Cooper, 264 Mass. 368, 373, 162 N.E. 729, 731 (1928). Commonwealth v. Latimore, --- Mass. ---, --- ^c, 393 N.E.2d 370 (1979). Finally, such evidence must exist in regard to each element of the crime with which the defendant was charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970).

The evidence was sufficient to send all five indictments to the jury. The evidence of the experts, if believed, would have warranted the jury in finding that the fire started in Velasquez's bathroom, that an accelerant was used, and that an open flame was needed to ignite the accelerant. ⁴ The jury could have found that the fire would have been contained in the bathroom for five minutes before smoke and flames were visible. Velasquez and Vasquez saw smoke and flames approximately five minutes after Rhoades said he was going to the bathroom.

Physical evidence found at the fire scene by the experts and testified to by them permitted the jury to infer that an accelerant was used. The intensity of the heat and the smoke also supported the inference that an accelerant was used. A chemist testified as to the flash point of rubbing alcohol, and gave an opinion that an open flame was required to ignite it.

Rhoades contends that even if these facts support an inference that an accelerant was present on the floor of the...