Com. v. Roberts

• Decision Date: 15 May 1979
• Parties: COMMONWEALTH v. Ronald R. ROBERTS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 989

389 N.E.2d 989

378 Mass. 116

COMMONWEALTH v. Ronald R. ROBERTS.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 7, 1979.

Decided May 15, 1979.

Joseph F. Flynn, Cambridge, for defendant.

Susan C. Mormino, Asst. Dist. Atty., for the Commonwealth.

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

HENNESSEY, Chief Justice.

The defendant was convicted by a Superior Court jury of unarmed robbery and murder in the first degree. The trial judge imposed the mandatory sentence of life imprisonment for the murder conviction and, with the defendant's consent, placed the robbery conviction on file.

The defendant appeals, arguing error in (1) the prosecutor's opening and closing statements, (2) the prosecutor's direct examination of a Commonwealth witness and cross-examination of the defendant, (3) the judge's exclusion of certain evidence during trial, and (4) the judge's charge to the jury on joint enterprise. The defendant has also asked this court to exercise its broad powers of review under G.L. c. 278, § 33E, and reduce the jury's verdict of murder in the first degree to murder in the second degree or manslaughter, in the event that we do not order a new trial. We find no reversible error and see no reason to enter a lesser degree of guilt than that found by the jury. Accordingly, we affirm.

Although we affirm the judgment, we have here another in a long series of cases marked by what we have called "prosecutorial error." See Commonwealth v. Earltop, 372 Mass. 199, ---, 361 N.E.2d 220 (1977) (Hennessey, C. J., concurring). The prosecutor overreached in two respects. First of all, as will be seen, the prosecutor described nonexistent proof in both his opening statement and closing argument to the jury. We have condemned abuses of the privileges of argument in a series of recent opinions, and have found it necessary to order new trials in some of those cases. ¹ Secondly, the prosecutor obviously attempted to use proof of the defendant's prior convictions of crime for substantive, rather than impeachment, purposes. These tactics fly in the face of our expressed concern in recent years that at best, and even handled with great care, proof of prior convictions might well be used by the jury in some cases for impermissible purposes. ² We appreciate that the prosecutor here was undoubtedly motivated by his wish to present the case aggressively, as the public interest demands. Nevertheless, the methods here were clearly excessive, and additional and unnecessary appellate issues were created. It is merely fortuitous that the entire circumstances in the case are such that no new trial is required. We also observe, as we have on other similar occasions, see, e. g., Commonwealth v. Earltop, supra at --- - ---, 361 N.E.2d 220, that defense counsel interposed no objection at any time during this series of erroneous steps by the prosecutor. As in the past, we once more find it difficult to understand why the present well-placed arguments of appellate counsel for the defense, addressed to prosecutorial error, apparently did not occur to defense counsel during the trial, at least to the extent of stimulating seasonable objections. ³

We summarize the pertinent facts as follows. In the early morning hours of December 26, 1975, John Telfair was shot in the head with a .22 caliber rifle and died as a result of the wound. The shooting occurred in Telfair's home at 58 High Street in Woburn. Telfair was eighty-seven years old at the time.

Radamus Colon, who lived with Elaine Roberts, one of the defendant's sisters, testified that sometime between 1:30 and 2:30 A.M. on December 26, 1975, the defendant and his girlfriend, Joanne Gallagher, arrived at Colon's home in Woburn. The defendant told Colon that he had done something, was afraid and wanted to leave town. When Colon asked what the defendant had done, the defendant replied that he had gone over to the house of the "colored guy on High Street," that the old man had pulled out a gun, that they "had a hassle with the gun," and that the gun went off. The defendant then offered Colon some money to drive him and Gallagher to an airport or train station. When Colon refused, the defendant and Gallagher left.

At a little after noon on the same day, Colon received a collect call from the defendant who was then in Trenton, New Jersey. The defendant wanted to know whether Colon had heard anything about the death of the old man on High Street, and Colon replied that he had not. The defendant asked Colon to look in the newspapers and said that he would call Colon back. At approximately 3 P.M. that afternoon, the defendant called Colon from Camden, New Jersey, and asked Colon for the Camden address of Janice Roberts, another of the defendant's sisters, and John Vega, the man with whom she lived. Colon supplied the address.

Vega testified that on December 27, 1975, he met the defendant and Gallagher and the three of them went to Vega's aunt's house, where the defendant's sister Janice was. The defendant showed Vega and Janice some money and asked Janice to count it. She counted somewhere between $500 and $600. After about an hour, Vega, Janice, the defendant and Gallagher went to Vega's apartment, where they drank and talked some more. The defendant said, "What a bum Christmas I had blowing somebody's brains out." The defendant went on to explain that he had gone to Telfair's house to ask him for some money, that Telfair refused but the defendant persisted, that Telfair pulled out a gun and the defendant took it away from him, after which he knocked Telfair down, took Telfair's wallet, and shot Telfair in the head. The defendant laughed as he said Telfair's "brains (blew) all over the walls." The defendant also stated that after the shooting, he and Gallagher searched Telfair's house, taking checks, pills, a radio, and a tape player, and that he then took the gun to his mother's house and told her to get rid of it.

Vega testified that he saw checks and "cans" of pills, bearing John Telfair's name, in the defendant's possession. The defendant asked Vega if he would try to cash the checks, and when Vega refused the defendant tore them up and threw them away. Vega did not see the radio or tape player. However, he did speak to someone who had purchased them.

The defendant and Gallagher stayed with Janice Roberts and Vega for several days, during which time the defendant drank constantly and repeated the above story several times. Janice Roberts's testimony basically echoed that offered by Vega and need not be repeated for purposes of this opinion.

John Kardeseski, the defendant's uncle, testified that sometime after Christmas he was given a .22 caliber rifle by his sister, the defendant's mother. He hid the rifle in his cellar. When Kardeseski next saw the defendant, the defendant asked him if he had gotten rid of the gun. Kardeseski replied that he had thrown it in the Merrimack River, which in fact was not true. ⁴ The defendant told Kardeseski that he had been "in trouble with it (in) Rhode Island, New Jersey, or Connecticut or something."

The defendant took the stand at trial and testified as follows. On the morning of December 25, 1975, he and Gallagher were at her mother's house, drinking vodka. Shortly after noon, they hitchhiked to Woburn, going first to his mother's house and then to his grandmother's house, where they continued drinking and had Christmas dinner. Sometime between 1 and 2 A.M., they left his grandmother's house and stopped at the home of John Telfair, whom the defendant had known since childhood. The defendant stated that his reason for stopping was that it was snowing and he wanted to call a cab. He had never known Telfair to have any money. Telfair invited Gallagher and the defendant in, and they all sat in the living room for a while. However, the living room was not heated, so they moved upstairs to Telfair's bedroom which was heated.

After talking in Telfair's bedroom for a few minutes more, the defendant asked if he could use the telephone downstairs and have a little of the whiskey he had seen in the living room. Telfair agreed. While on the telephone, the defendant heard a shot, ran upstairs, and saw Telfair lying on the floor and Gallagher holding a gun in her hands, looking "shocked." The defendant grabbed the gun and he and Gallagher ran outside, locking the door behind them. They went to his mother's house and he gave her the gun. They then went to his sister's house in Woburn, where the defendant spoke briefly to Radamus Colon. ⁵ On the way there, Gallagher showed the defendant a wallet that she had taken from Telfair. The defendant took the money out and told her to get rid of the wallet, which she did.

After leaving Colon's house, the defendant and Gallagher went to Boston and boarded a train to New York. From there they went to Camden, New Jersey, where they stayed with Janice Roberts and John Vega for the next seven or eight days. The defendant testified that he drank the entire time he was in New Jersey. The defendant also testified that he told his sister and Vega that it was he who shot Telfair, because he wanted to protect Gallagher. Gallagher had given the defendant money upon his release from jail a few months earlier, and he had been living with her for approximately one month prior to the shooting.

1. The prosecutor's opening and closing statements. In his opening statement to the jury, the prosecutor made the following remarks: "(Janice Roberts and John Vega) will tell you that Ronald Roberts laughingly told them he went to the house of John Telfair, that he beat up the old man, that he took some money from the old man, that while Joanne Gallagher was counting the money the old man went to get a gun, that Ronnie Roberts knew the old man wasn't going to shoot him . . . so he took the gun from the old man, knocked him to the ground, held it to his temple, (and) pulled the...