Com. v. Robertson

• Decision Date: 04 December 1990
• Citation: 408 Mass. 747,563 N.E.2d 223
• Parties: COMMONWEALTH v. Vincent ROBERTSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 223

563 N.E.2d 223

408 Mass. 747

COMMONWEALTH v. Vincent ROBERTSON.

Supreme Judicial Court of Massachusetts Plymouth.

Argued Nov. 7, 1990.

Decided Dec. 4, 1990.

Willie J. Davis, Boston, for defendant.

Robert C. Thompson, Asst. Dist. Atty., for Com.

The defendant, pro se, submitted a brief.

Before WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

NOLAN, Justice.

The defendant, Vincent Robertson, was convicted of murder in the first degree in connection with the deaths of Mary Ross and Valentina Giovanniello. Robertson now appeals, arguing, among other things, that the judge erred in denying his motion for a required finding of not guilty and by improperly admitting evidence of his prior misconduct which tended to portray him as a bad person. We hold that there was no error and accordingly affirm the judgments of the Superior Court.

At approximately 2 A.M. on May 10, 1983, police officers discovered the bodies of Mary Ross and Valentina Giovanniello at 5 Royal Road in Brockton. Mary Ross was face down on the living room floor in front of a couch with a single bullet in her head. Valentina Giovanniello was on her back in the same room with a bullet wound through her left arm and another in her back.

The medical examiner testified that the time of death for both victims was probably 2 A.M. on May 9, but no later than 9 A.M. that day. The victims were both killed by a weapon capable of firing .25 caliber automatic ammunition. A box of .25 caliber automatic ammunition with several rounds missing was discovered on the fireplace mantel in the living room. Police recovered several live cartridges from the floor in front of the mantel. The murder weapon was never found. Several witnesses testified that on prior occasions they had seen the defendant brandishing a gun which was consistent in appearance with the murder weapon.

Mary Ross resided at 5 Royal Road with her child, of whom the defendant was apparently the father. Valentina Giovanniello lived at a nearby apartment. It appears that Robertson spent time at both residences and received mail at each. There was evidence to the effect that the victims were prostitutes and Robertson was their pimp. There was also testimony indicating that Robertson had severely beaten each victim at different times several months prior to the murders.

On May 8, 1983, Robertson hosted a cookout at the 5 Royal Road house. Following the party, many of the guests went to a local bar. After arranging for the child to be taken care of by the daughter of a friend, Robertson and the two victims also went to the bar. Robertson drove his blue Cadillac automobile and the victims took their yellow Honda automobile. The victims later left that bar and went with the defendant in his Cadillac to another. The Honda was recovered from the parking lot of the first bar after the murders. Robertson was seen arguing with the victims, and one witness testified that she saw Robertson grab one of the victims by the hair. The three were asked to leave the second bar at around 12:30 A.M. No one testified to having seen the victims after that time. The defendant's Cadillac was found parked in the driveway at 5 Royal Road.

Sometime on May 9, the defendant retrieved his child from the babysitter and fled to parts unknown. A few days later Robertson spoke to a friend from a public telephone. The friend handed the phone to a police officer whom Robertson knew. The officer suggested that Robertson had "fucked up." Robertson replied with a "mumbled response." The officer then made arrangements with Robertson to secure the child so that the child would not be hurt during the "nationwide search" for Robertson which would ensue. Robertson did not question why there might be such a manhunt, but made arrangements to turn over the child.

More than two years later, in December of 1985, Robertson was apprehended in Virginia. He gave the arresting officers two different aliases. He was tried by a jury and convicted on indictments charging murder in the first degree.

1. The indictments. Robertson first claims that his convictions cannot stand because the proof at trial did not match the indictments. Both indictments were in the form prescribed by G.L. c. 277, § 79 (1988 ed.), stating that Robertson "by ... assault and beating did kill and murder" the victims. Robertson claims that, because the crimes described at trial did not involve a beating, he was deprived of a fair trial. The statutory form of indictment is constitutionally sufficient to charge murder by whatever means it may have been committed. Commonwealth v. Jordan, 207 Mass. 259, 266-267, 93 N.E. 809 (1911). Commonwealth v. Jones, 16 Mass.App.Ct. 931, 450 N.E.2d 635 (1983). Therefore the proof at trial did not impermissibly deviate from the indictments.

2. Prior bad acts. The prosecution presented evidence that Robertson was a pimp and the victims had worked for him as prostitutes, that Robertson had, some months before the murders, severely beaten each of the victims on different occasions, and that Robertson on several occasions was seen with a handgun. Robertson claims that this evidence was improper character evidence and, therefore, was inadmissible.

Evidence of prior bad acts is not admissible to show that the defendant has a criminal propensity or is of bad character. Commonwealth v. Hoffer, 375 Mass. 369, 372, 377 N.E.2d 685 (1978). However, "[r]elevant evidence is not rendered inadmissible merely because it indicates that the defendant may have committed an offense other than that for which he is being tried." Commonwealth v. Young, 382 Mass. 448, 462-463, 416 N.E.2d 944 (1981). All of the challenged evidence is admissible for a purpose other than impugning the defendant's character and is therefore admissible, so long as its probative value is not substantially outweighed by any prejudice. This latter determination is for the judge to make and we shall not disturb it on appeal "except for palpable error." Id. at 463, 416 N.E.2d 944.

The evidence that Robertson had, on prior occasions, possessed a handgun was admissible for purposes other than showing the defendant in a poor light. The victims were killed by a weapon capable of firing .25 caliber automatic ammunition. Several witnesses testified that they saw Robertson with a gun consistent in appearance with that type of weapon. The murder weapon was never found. The testimony concerning the gun lent credence to the idea that Robertson possessed the means to commit the murders and thus was relevant. The judge properly instructed the jury on the use they could make of such evidence.

Robertson also objects to evidence tending to show that the victims were prostitutes in his employ. This too was admissible for a purpose other than showing that the defendant was a bad person. In Commonwealth v. Young, supra at 463, 416 N.E.2d 944, we stated that "[i]t is well for the jury to have a view of the entire relationship between the defendant and ... the alleged victims." That proposition is equally valid in this case. The relationship between the defendant and the two victims was complex, and the jury were entitled to evidence describing the whole relationship. "Without the challenged evidence the killing could have appeared to the jury as an inexplicable act of violence." Commonwealth v. Bradshaw, 385 Mass. 244, 269, 431 N.E.2d 880 (1982). The judge did not abuse his discretion by allowing the jury to hear this evidence.

Finally, Robertson objects to the introduction of evidence tending to show that he had beaten the victims some months prior to the murders. We have long recognized that "[e]vidence of a hostile relationship between a defendant and his spouse may be admitted as relevant to the defendant's motive to kill the victim spouse." Commonwealth v. Gil, 393 Mass. 204, 215, 471 N.E.2d 30 (1984). Even though the defendant's relationship to the victims in this case was not spousal, the evidence of prior physical violence and hostility was nevertheless relevant to whether Robertson might have a reason to kill the victims.

In Commonwealth v. Jordan (No. 1), 397 Mass. 489, 492 N.E.2d 349 (1986), the defendant was charged with assault and battery with intent to murder his girl friend. Evidence of prior beatings was held admissible as being "probative of the defendant's mental state and his intent at the time of the offenses.... 'The evidence was ... indicative of hostility and actual malice toward the victim.' " (Citations omitted.) Id. at 492, 492 N.E.2d 349. Moreover, evidence of the prior beatings was admissible because "it tended to show the defendant's state of mind toward [the victims], namely hostility, which could be found to have continued up to the time of [the victims'] death." Commonwealth v. Little, 376 Mass. 233, 238, 379 N.E.2d 1105 (1978). See Commonwealth v. Bartolini, 299 Mass. 503, 510-511, 13 N.E.2d 382, cert. denied, 304 U.S. 565, 58 S.Ct. 950, 82 L.Ed. 1531 (1938).

The evidence of prior violence by the defendant toward the victims also further demonstrated to the jury the full nature of the relationship between the defendant and the victims. The fact that Robertson had severely beaten the victims in the past, coupled with evidence of their relationship and the fact that they had been seen arguing earlier that evening could have shown the jury that Robertson had reason to kill the victims.

Robertson contends that, even if the evidence was admissible, some of it was too remote in time from the murders, and there was simply too much of it. Both of these matters are within the sound discretion of the judge and we find no indication that the judge abused this discretion in this regard. See Commonwealth v. Jordan (No. 1), supra.

3. The photograph. Robertson next argues that the judge erred when he admitted in evidence a certain photograph of one of the victims. The photograph shows Mary Ross shortly after she had allegedly been beaten by the defendant. Robertson contends...