Com. v. Robinson, s. 91-P-1371

• Decision Date: 26 July 1993
• Docket Number: 92-P-1345,Nos. 91-P-1371,s. 91-P-1371
• Parties: COMMONWEALTH v. Stephen J. ROBINSON.
• Court: Appeals Court of Massachusetts

Page 697

614 N.E.2d 697

34 Mass.App.Ct. 610

COMMONWEALTH v. Stephen J. ROBINSON.

Nos. 91-P-1371, 92-P-1345.

Appeals Court of Massachusetts,

Essex.

Argued April 9, 1993.

Decided June 18, 1993.

Further Appellate Review Denied July 26, 1993.

Judith H. Mizner, Newburyport, for defendant.

Elin H. Graydon, Asst. Dist. Atty., for Com.

Before GILLERMAN, KAPLAN and GREENBERG, JJ.

KAPLAN, Justice.

Stephen Robinson was indicted by an Essex County grand jury for arson of a building (G.L. c. 266, § 2) and a motor vehicle (G.L. c. 266, § 5). Upon bench trial, he was convicted of both crimes. ¹ The judge denied his motion for a new trial.

This is a consolidated appeal in which the defendant challenges the sufficiency of the evidence and also claims error in the refusal of the new trial. He makes an incidental attack on the denial of his pretrial motion to suppress certain documents.

1. Sufficiency of the evidence. The trial transcript is lengthy and there are many exhibits. It will be possible, however, to give a fair account of the case in the form of a condensed statement.

a. The case. The victim, Richard Norris, and the defendant, Stephen Robinson, both resided in Rockport with their families. They became acquainted sometime in 1986; their recreational work with a Boy Scout troop--Norris as scoutmaster, the defendant as assistant scoutmaster--brought them together weekly a good part of the year. The defendant and his wife Diane were guests of Norris and his wife Karen at the Norrises' home on Allen Street on perhaps three occasions before the events to be recounted.

By mid-1987, the Robinsons' marriage was unraveling, and it may be that the Norrises' marriage was also faltering. In early evening, June 24, 1987, Norris and Diane Robinson met by prearrangement at an auto dealership in Peabody or Danvers, went to a bar, then to a motel in the Liberty Tree Mall neighborhood in Danvers. They registered and spent time there. Norris and Ms. Robinson spoke by telephone after June 24, and on July 14, again by arrangement, they drove separately to a parking lot in the same Danvers neighborhood. They talked and kissed. At this point the defendant drove up and interrupted the meeting. He spoke very briefly with Norris. They would meet later, the defendant said.

In the days following, Norris and Ms. Robinson discussed by telephone whether they should admit to their affair, and decided against it; they also discussed possible means of securing and destroying evidence--American Express card records of payment--of their sojourn at the motel (nothing came of this). Ms. Robinson found out later that the telephone line at her home on Granite Street had been invaded, presumably by the defendant, and some of her conversations with Norris taped.

Meanwhile, on July 18, 1987, the defendant and Norris met by agreement at a Brigham's sandwich shop in Gloucester. The defendant insisted that Norris tell him the truth about his relations with Ms. Robinson, but Norris was not forthcoming. ² The defendant said he would make it financially and emotionally difficult for Norris if Norris did not admit to what had happened.

On July 22, 1987, the defendant and Karen Norris met at the same place in Gloucester. He told her about their spouses' affair and the thwarted assignation on July 14. ³

In early August, 1987, the defendant and Norris had another agreed encounter, this time on the Granite Pier in Rockport. Norris appeared in his antique 1953 Jaguar convertible automobile, a collector's piece which he often drove on weekends; the defendant knew the car and had seen the garage on the Norrises' grounds on Allen Street in which it was kept. At the interview Norris admitted nothing. The defendant said in substance to Norris, If you ever come near my wife again, I'll kill you.

In February, 1988, the defendant's attorney wrote Norris asserting a claim against him, and in spring, 1988, the attorney commenced a civil action on the defendant's behalf against Norris, charging intentional infliction of emotional distress arising from Norris's affair with the defendant's wife. (This evidently was a plausible substitute for a claim of alienation of affection, a form of action abolished by statute in the Commonwealth.) Damages of $250,000 were claimed. The action was pending at the time of the fire.

At 3:30 A.M. on Thursday, August 18, 1988, fire broke out with an explosion in the Norris garage, burning the Jaguar, the sole car kept there, into charred and melted remains, and largely consuming the two-story garage. The Norrises and their children were in the main house nearby at the time, but they were untouched.

Members of the Rockport fire and police departments suspected that the fire was of incendiary origin. They took a number of items from the fire scene and sent them to the State Department of Public Safety in Boston for analysis; these included a melted-down plastic disc, probably the remnant of a jug, taken from what was left of the driver's compartment of the Jaguar; also some stuffing drawn from the damaged driver's seat. Smell and chromatographic analysis confirmed the presence of gasoline.

Fire and police officers asked Norris on the day whether he knew of anyone who might have set the fire. He named the defendant (and added the name of a certain former employee of the company at which Norris worked). In consequence, on August 19, Sergeant Douglas MacMillin of the Rockport police called the defendant's home, and on August 20, at 10:00 P.M., the defendant came to the police station. He was told he was a suspect and was given Miranda warnings. He said he had left by air on August 16 on a business trip to Orlando, Florida, for his company, Promethean Systems, and had returned by air to Logan Airport in Boston about 8:30 P.M. on August 18. He produced a car rental agreement with a Hertz office in Orlando, an American Express receipt in payment of a hotel bill, and an expense report.

According to Ms. Robinson, the defendant arrived home on Granite Street about 9:30 P.M. on August 18. When told of the fire, he said, "Well, he finally got his due." On August 20, the defendant, according to Ms. Robinson's description, was carrying himself "stiffly." The next morning, unbuttoning a flannel shirt that he had been wearing buttoned to the neck, the defendant revealed burns extending from the left underpart of his chin down his neck and clavicle. Ms. Robinson accompanied him to the Addison-Gilbert Hospital. He was treated for second and third degree burns, as well as an abrasion of his right elbow. He said he had suffered the burns on August 19 as the result of a flareup when he tried to light the propane gas grill at home. ⁴ He was advised to return the next day for redressing, and did so, and again on August 24.

The difficulties in the Robinson household broke out in a violent episode on October 7, 1989. Ms. Robinson got help from Sergeant MacMillin. A chapter 209A restraining order issued against the defendant, and in that connection he spent three days in jail.

Shortly afterward, on October 14, 1989, Ms. Robinson brought copies of certain papers to MacMillin. She had gone through files of the Promethean Systems company covering the relevant period in August, 1988. ⁵ She found papers showing that the defendant had returned the rented car to Hertz at 6:15 P.M. on August 17, not August 18; also an American Express card receipt dated August 17 for a meal at the Appleton Inn in the Mall neighborhood in Danvers. It appeared further that the defendant's air ticket, noting a Delta flight from Orlando to Boston scheduled to arrive at 8:53 P.M. on August 18, had been overwritten with a number 604 and code indicating that the ticket could have been used on Eastern Airlines. Eastern's flight 604 was scheduled to leave Orlando on weekdays at 7:19 P.M. and arrive in Boston at 10:23 P.M. This allowed for a late meal at the Appleton Inn, some twenty-five minutes by automobile to Rockport. ⁶ So plenty of time would be left for a criminal event on Allen Street in the early morning of August 18.

Finally, a police expert assigned to the State Fire Marshal's office testified that in his opinion the garage fire had been deliberately set with gasoline as an accelerant, and that its point of origin was the driver's compartment of the Jaguar. Eyewitness testimony about the fire, particularly testimony by Norris, who was at the front of the garage very soon after the explosion, supported this view of the originating point of the fire.

So much for the Commonwealth's case. On the part of the defendant, four witnesses were called. The defendant's son Timothy, sixteen years old at the time of trial, gave testimony about the behavior of the propane gas grill, but it was without particular bearing on occasions that might be relevant. A qualified fire expert testified at length, urging a possibility that the fire might have arisen accidentally, and concluding that the hypothesis of a set fire had not been proved. There was testimony from a couple who occupied a cottage opposite the Norris house. On the night of the fire, they heard a sound that suggested a break-in at the Norris house and the husband called the police; on seeing flames, he called again to change the report. The wife thought she heard footsteps on the pavement beside the cottage. The couple went outside and saw a man, twenty to fifty years of age, a few blocks from the site of the fire. This testimony did not lead anywhere.

b. Evaluation. The judge could reasonably and properly arrange the record facts in his mind and evaluate them thus.

First, the judge could accept that it was a set fire. Indeed the analysis by the Commonwealth's expert of the physical remains and the directions and areas of burning could strike the judge as particularly persuasive--more than enough to overcome the doubts expressed by the defendant's expert.

That it was the defendant who set the fire was shown through a...