Com. v. Rolon

• Decision Date: 13 March 2003
• Citation: 438 Mass. 808,784 N.E.2d 1092
• Parties: COMMONWEALTH v. Anthony ROLON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

784 N.E.2d 1092

438 Mass. 808

COMMONWEALTH v. Anthony ROLON.

Supreme Judicial Court of Massachusetts, Bristol.

Argued November 8, 2002.

Decided March 13, 2003.

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John F. Palmer, Boston, for the defendant.

Kevin Connelly, Assistant District Attorney (Steven E. Gagne, Assistant District Attorney, with him) for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, SOSMAN, & CORDY, JJ.

SOSMAN, J.

The defendant was convicted of felonymurder in the first degree, with armed burglary as the predicate felony.¹ He was also convicted of two counts of assault and battery by means of a dangerous weapon, armed assault in a dwelling, home invasion, and armed burglary. The defendant filed a motion pursuant to Mass. R.Crim. P. 25(b)(2), 378 Mass. 896 (1979), seeking reduction of the murder verdict. The trial judge allowed the motion and reduced the verdict to murder in the second degree. The Commonwealth appeals from the judge's order reducing the verdict. The defendant appeals from his convictions² and asks this court to order a new trial or to further reduce the verdict to manslaughter pursuant to G.L. c. 278, § 33E. For the following reasons, we affirm the conviction of murder in the first degree, reverse the order reducing the degree of guilt, reverse the convictions of assault and battery by means of a dangerous weapon and armed assault in a dwelling, vacate as duplicative the conviction of armed burglary, and decline to grant relief pursuant to G.L. c. 278, § 33E.

1. Facts. The defendant's convictions stem from an incident in which a group of armed men stormed an apartment in a New Bedford housing project in retaliation for an earlier confrontation involving some of the apartment's occupants. Three persons in the apartment — Robert Botelho, Matthew Grant, and Anthony Mullen — were stabbed in the course of the ensuing melee. Botelho died from his injuries. Grant and Mullen survived. The Commonwealth's theory was that Rolon was the principal instigator of the group's attack on the apartment and that he was the one who fatally stabbed Botelho during the course of that attack.

On the evening of January 20, 1996, Botelho, Mullen and Grant were visiting the apartment of Botelho's girl friend, Natasha Azevedo. Azevedo lived in the apartment with her two-year old son, her sister Tiffany, and her cousin, Desiree Gibbs. After some period of drinking, the three men and three women decided to go to a party being held at a nearby apartment in the housing project. There was some concern about potential friction between Botelho and other guests who might be at the party, and the three men therefore armed themselves: Mullen with a "steak fork," Grant with a hammer, and Botelho with a pistol. Botelho's pistol, although it appeared real, had a plug in the barrel and was incapable of firing. After leaving Azevedo's baby with a next door neighbor, the group proceeded to the party at around 11 P.M.

At the party, a fight erupted between Mullen and one of the other guests. During that altercation, Botelho pulled out his gun, waved it around, and told everyone to "get off [his] boy." The defendant, Anthony Rolon, arrived shortly before the end of the fight and began arguing with Botelho. Rolon complained that Botelho would "bring the cops around" where he, Rolon, was "trying to make money." During that argument, Botelho pulled his gun out, waved it around, and repeatedly pointed it at Rolon. In response, Rolon stretched out his arms and told Botelho to "come on, go ahead." Various friends intervened, convinced Botelho to put the gun away and leave, and escorted Botelho and his companions back to Azevedo's apartment to make certain that they left. However, despite the efforts to separate Botelho from Rolon, Rolon and a few of his friends followed close behind. Rolon continued shouting at Botelho ("Come on, you're a big man, go ahead"). When they reached Azevedo's apartment, words continued to be exchanged, with Rolon yelling for Botelho to come out and fight. Botelho ultimately told them to leave, and went inside Azevedo's apartment. One of Rolon's friends yelled out, "We'll be back." Rolon's group then left, and all was quiet for some ten to twenty minutes thereafter.

During that interval of time, Rolon's group joined up with a larger group of some fifteen to twenty young men. Most of them were armed, carrying knives, bats, shovels, hammers, sticks, and frying pans. As they assembled slightly down the hill from Azevedo's apartment, someone asked what they were doing. An unidentified member of the group replied, "We're [going to] take care of something." Others were heard asking who had pulled a gun on Rolon. Rolon said that he "was going to get the kid" with the gun. Various people who had been at the earlier party saw the armed group and attempted to dissuade Rolon, telling him and his companions that they should "just drop it ... just leave it alone" that "the person's gone, he's left," and "[t]here's no more reason to fight." However, Rolon did not respond, and "nobody seemed to listen." Anticipating trouble, one partygoer went to telephone the police.

Rolon, at the head of one group, proceeded up the hill in the direction of Azevedo's apartment, while a smaller group broke off and approached the apartment by a different route. As they reached the apartment, one group went around to the back while the other remained in front. The attack began by smashing the apartment windows with a rock, a board, and a shovel. Botelho, Mullen, and Grant rushed out the back door. Botelho, carrying his inoperable gun, ran at one of his attackers and struck him with the gun. However, the gun fell to the ground, and someone called out that the gun was a "fake." Grant grabbed Botelho and rushed back toward the apartment. Rolon and one of his companions, Hidekel "Kelly" Hernandez, chased after Botelho and caught up with him just outside the back door. Hernandez began hitting Botelho; Rolon stabbed him several times. Botelho went back inside the apartment, and ultimately collapsed in the living room.

Meanwhile, other members of Rolon's group were fighting with Mullen outside. Mullen was hit with a shovel and cut with a knife. When he made his way back inside the apartment, he was assaulted by yet another intruder with a knife. Others pushed their way through the back door and caught up with Grant, who had managed to get inside as far as the living room. Surrounded by attackers who had him pinned down on the couch, Grant was struck in the head with the handle of a hammer and stabbed in the buttocks and thigh, severing an artery. Versions differed as to the identity of the individuals who stabbed Mullen and Grant, and versions differed as to whether Rolon himself had ever been inside the apartment at any point.³ By all accounts, the scene was chaotic, and most of the perpetrators were never identified.

The attack ended when one of the intruders yelled out "five-o" (a reference to the imminent arrival of the police) and the group fled. Rolon and several others regrouped at a friend's apartment shortly thereafter. Hernandez, whose hands were bloody, reported that he had gotten "the kid inside the house good," and Rolon bragged that "he got that kid good with the gun."

Botelho was still alive when police arrived at the scene, but he succumbed shortly thereafter. He had three deep stab wounds in the chest, the fatal wound being to the heart. He had also sustained blunt force injuries and lacerations to the head, neck, shoulders, back, arm, thigh, and hands.

2. Vouching for credibility of a witness. One of the participants in the storming of Azevedo's apartment, Eddie Torres, was a juvenile at the time. Pursuant to a plea agreement, he pleaded to being delinquent by reason of murder in the second degree and testified for the prosecution at Rolon's trial. Although other witnesses described Rolon's role in the events leading up to the attack and confirmed his identity as one of the group of attackers, Torres was the only eyewitness to testify that it was Rolon who actually stabbed Botelho. On appeal, Rolon contends that the prosecutor improperly vouched for Torres in his direct examination and again in closing argument. We disagree.

During the direct examination of Torres, the prosecutor elicited the fact that Torres had a plea agreement. He then asked Torres whether he had agreed to provide "complete and truthful and accurate testimony," to which Torres replied, "Yes." In one subsequent question concerning the agreement, the prosecutor phrased the question in a fashion that made reference to the obligation to give "complete, truthful and accurate" testimony. The defendant objected to both questions; both objections were overruled.

Ordinarily, questions concerning an agreement's requirement that a cooperating witness give "truthful" testimony should be reserved for redirect examination after cross-examination has attacked the witness's credibility based on the plea agreement. See Commonwealth v. Rivera, 430 Mass. 91, 96-97, 712 N.E.2d 1127 (1999); Commonwealth v. Ciampa, 406 Mass. 257, 264, 547 N.E.2d 314 (1989). However, there is not an absolute prohibition that prevents any and all direct examination reference to the agreement's terms concerning "truthful" testimony. See, e.g., Commonwealth v. Marrero, 436 Mass. 488, 498-500, 766 N.E.2d 461 (2002) (two references during direct examination to witness's obligation to "tell the truth" and her understanding that she could still be prosecuted for perjury did not amount to improper vouching); Commonwealth v. Irving, 51 Mass.App.Ct. 285, 294-295, 744 N.E.2d 1140 (2001) (reference during direct examination to obligation to give "truthful, complete and accurate testimony" was not premature in light of defense counsel's opening statement emphasizing that plea agreement gave cooperating witness motive to fabricate testimony).

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