Com. v. Salemme

Decision Date08 August 1985
Docket NumberS-3524
Citation481 N.E.2d 471,395 Mass. 594
PartiesCOMMONWEALTH v. John J. SALEMME.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Joseph J. Balliro, Boston (Robert A. George, Dedham, with him), for defendant.

Leonard Henson, Asst. Dist. Atty. (Margaret Steen Melville, Asst. Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

LIACOS, Justice.

On April 6, 1983, a Suffolk County grand jury indicted the defendant, John J. Salemme, for murder. G.L. c. 265, § 1 (1984 ed.). On February 13, 1984, a jury returned a verdict of guilty of murder in the first degree on the indictment. The judge sentenced Salemme to life imprisonment at the Massachusetts Correctional Institution at Cedar Junction. Salemme appealed to this court. On appeal he argues that the judge erred in (1) denying the defendant's motion for a required finding of not guilty; (2) denying his motions for a mistrial; (3) declining to give a certain instruction offered by the defendant; and (4) excluding the testimony of a defense witness. Salemme also requests this court to afford appropriate relief under G.L. c. 278, § 33E (1984 ed.). We address only the first of these issues. We hold that the judge erred in denying Salemme's motion for a required finding of not guilty at the close of the Commonwealth's case-in-chief. Accordingly, we reverse the judgment below.

In determining whether the judge erred in denying Salemme's motion for a required finding of not guilty, we consider whether "the evidence is insufficient as a matter of law to sustain a conviction on the charge" of murder in the first or second degree. Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979). "[The] question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 2788-2789, 61 L.Ed.2d 560 (1979). See Commonwealth v. Clark, 378 Mass. 392, 404, 393 N.E.2d 296 (1979).

In keeping with our task, we describe the evidence in the light most favorable to the Commonwealth. In October, 1981, the Commonwealth's first witness, Soon Yen Chin, was a waiter at the Four Seas restaurant in the Chinatown section of Boston. Chin testified as follows. He worked the 6 P.M. to 4 A.M. shift at the restaurant on the night of October 12 and the early morning of October 13, 1981. At three o'clock on the morning of October 13, 1981, a man, whom the defense stipulated was Brian Halloran, entered the restaurant and sat at the round table nearest the kitchen. There was nothing on the table when Halloran sat down. Halloran did not request anything to eat or drink at that time. Twenty minutes later, a second man entered the restaurant and sat across from Halloran at the same table. 1 The second man was about five feet, eight or nine inches tall, was thirty-five or forty years old, and was dressed neatly in a suit, shirt, and tie. He had a slim build and black hair. Chin had seen both him and Halloran in the restaurant once or twice before. Chin served this second man a can of Sprite. He also served Halloran a can of Sprite.

Chin testified further that, at approximately 3:45 A.M., a third man, the victim George Pappas, entered the restaurant and sat between Halloran and the second man, with the former to his left and the latter to his right. Chin served Pappas a steak "to go" in a brown paper bag. The three men were talking together in a friendly manner. Chin passed by the table "many times" after Halloran entered, after the second man joined him, and after Pappas entered and the three men sat together. At one point Chin observed Halloran speaking on the telephone by the cash register in the restaurant; he later saw Halloran sitting at the table again. Chin saw no other customers in the restaurant after the third man, Pappas, arrived. In addition to Chin and two cooks, a fourth employee, the manager Barry Wong, 2 was present in the restaurant that night. Two other waiters who worked the 6 P.M. to 4 A.M. shift that night left the restaurant some time between 3:15 and 3:30 A.M. Chin returned to the kitchen at approximately 3:50 A.M. At about 4 A.M., while he was in the kitchen, Chin heard a loud noise which sounded to him like a gunshot. He ducked down and then ran upstairs to a storage room with the two cooks.

Sergeant Stephen A. Murphy, of the Boston police department homicide unit, testified that he entered the Four Seas restaurant at approximately five o'clock on the morning of October 13, 1981. There were a number of people in the restaurant when he arrived, mostly police officers. Murphy observed the body of Pappas seated at a large round table with his face down on the table in a large pool of blood. Murphy also observed a puncture wound above the victim's right eye. On cross-examination Murphy testified that Chin had described the second man who entered the restaurant as "a white male, 35 to 40, 5 foot 9, beer belly." 3

Officer Joseph T. Sullivan, from the Boston police department identification unit, testified that he had arrived at the Four Seas restaurant at approximately 4 A.M. on the morning of October 13, 1981, and dusted for fingerprints at various parts of the restaurant. He found a "very good latent fingerprint" on a Sprite can which had been located on the table "on the right-hand side of [the] victim." The defendant, Salemme, stipulated that this print on the Sprite can was his thumbprint. On cross-examination, Officer Sullivan stated that he also found fifteen partial prints on the can and on other items found at the scene of the crime. Sergeant Arthur M. Leets, an officer in charge of the latent fingerprint unit of the Boston police department, testified on cross-examination that he was not able to identify the other partial prints on the Sprite can, or any of the other partial prints on other items in the restaurant that he examined. He stated that he had not attempted to compare the other partial prints on the Sprite can with the fingerprints of Soon Yen Chin, the waiter.

Dr. George Curtis, a medical examiner in Suffolk County at the time of the homicide, was qualified by the judge as an expert witness. Dr. Curtis testified that on the early morning of October 13, 1981, he observed the body of the victim "slumped over the table, sitting in a chair." He performed an autopsy on the body. In Dr Curtis's opinion, the victim died as a result of a gunshot wound to his head. The witness opined that the victim was shot while seated in the same position at the table at which his body was discovered, and that his death was "quite sudden." Dr. Curtis stated also that "the bullet entered the right eye and took a course to the left, slightly upward and to the back." Dr. Curtis agreed that the bullet's angle of entry and trajectory through the head was "consistent with a bullet being fired from the right side" of the victim. On cross-examination, Dr. Curtis testified that the evidence was also "possibly" consistent with the bullet being fired from the left of the victim, if the victim had turned his head to the left such that the right side of his head faced left. The person firing the bullet would have had to be to the right of the victim's head. Dr. Curtis observed no powder burns on the victim's face and concluded, as a result, that the shot was fired from over three feet away and that it could have been fired from six or nine feet away.

The Commonwealth introduced considerable evidence of the defendant's apparent flight, which tended to show consciousness of guilt. A warrant for Salemme's arrest was issued on November 6, 1981. A bulletin stating that Salemme was wanted was circulated within the Boston police department. On February 12, 1982, a local television station broadcast a story indicating that the police officers were looking for Salemme. Salemme's picture appeared in a local newspaper several times, with the information that the police officers were searching for him. Sergeant Murphy, Sergeant John Doris, Detective Thomas F. Cashman, and other officers testified as to their efforts to locate the defendant at places where he had been known to visit previously and at his residence. As described by one of the officers, Robert L. Chenette, the effort to locate the defendant was an "intensive investigation." These various efforts were unavailing, and the police officers did not locate Salemme. Officer Paul Rams testified that he was on duty and was responsible for booking Salemme on March 21, 1983, when Salemme surrendered to the police officers. 4

The case was submitted to the jury with instructions that they could find the defendant guilty of murder in the first degree (by premeditation), murder in the second degree, or not guilty. The Commonwealth did not argue that the murder was a joint venture between Salemme and Halloran. 5 See Commonwealth v. Casale, 381 Mass. 167, 172-175, 408 N.E.2d 841 (1980). The Commonwealth's theory was that Salemme himself administered the fatal shot to the victim's right eye. The evidence, viewed in the light most favorable to the Commonwealth, established that Salemme was the "second man" in the restaurant. The jury could infer Salemme's presence from his thumbprint on the Sprite can and from Chin's description of the second man. Commonwealth v. Clark, 378 Mass. 392, 404-406, 393 N.E.2d 296 (1979). Commonwealth v. LaCorte, 373 Mass. 700, 702-703, 369 N.E.2d 1006 (1977). The jury could also infer, from the testimony of Chin and Dr. Curtis, that the victim sat between Salemme and Halloran, with Salemme on his right, and that the victim was shot from the right side of his head. Moreover, viewed in the light most favorable to the prosecution, the evidence also...

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