Com. v. Toro

• Decision Date: 10 July 1985
• Citation: 395 Mass. 354,480 N.E.2d 19
• Parties: COMMONWEALTH v. Angel S. TORO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 19

480 N.E.2d 19

395 Mass. 354

COMMONWEALTH v. Angel S. TORO.

Supreme Judicial Court of Massachusetts Suffolk.

Argued March 4, 1985.

Decided July 10, 1985.

Walter T. Healy, Boston (Frank G. Kelleher, Boston, with him), for defendant.

John A. Kiernan, Asst. Dist. Atty., for Com.

Before HENNESSEY, C.J., and WILKINS, NOLAN and LYNCH, JJ.

WILKINS, Justice.

On appeal the defendant, convicted of murder in the first degree and armed robbery, challenges the admission of certain evidence and the propriety of portions of the prosecutor's closing argument. He also seeks relief under G.L. c. 278, § 33E (1984 ed.). We affirm the convictions.

About 8 P.M. on Sunday, April 19, 1981, a desk clerk at the Howard Johnson's Motor Lodge on the Southeast Expressway in Boston was shot and killed. Approximately $385 was taken from a cash register. At the trial a bartender at the motor lodge and a motel patron identified the defendant as the robber. The principal factual issue at trial was whether the defendant was the person who committed the crimes. The defendant presented evidence that challenged the prosecution witnesses' identification of him; he offered alibi evidence; and he contended that, because he had substantial amounts of money available to him as a cocaine dealer, he had no reason to want to rob anyone on that day. The defendant did not take the stand. The issue for the jury was one of credibility on sharply conflicting evidence. An earlier trial of these indictments had ended with a mistrial because the jury could not reach verdicts after deliberating during a four-day period. This jury deliberated for more than six hours before returning their verdicts.

1. The defendant argues that it was reversible error to admit in evidence certain weapons, ammunition, and associated items which a Pennsylvania State trooper had seized in May, 1981, in a guest room in the Raystown County Inn in Huntingdon, Pennsylvania. The defendant contends that there was no proper basis to conclude that the room was his. He argues further that the presence of weapons, ammunition, and related items in the room was irrelevant and, in any event, their admission in evidence was unfairly prejudicial. The victim had been killed by a bullet from a .38 caliber weapon.

A Pennsylvania State trooper testified that on May 9, 1981, he seized two .32 caliber revolvers, a basket weave holder for a .45 caliber clip, and numerous rounds of ammunition for weapons other than .38 caliber weapons. He also seized various .38 bullets and an ammunition holder for .38 caliber cartridges. Before the items were introduced in evidence, the judge instructed the jury as follows: "I think I should inform the jury at this point that it is the Commonwealth's contention that the gun that fired the fatal shot was a .38 caliber gun, and there is no contention by the Commonwealth that the actual weapons that Trooper Pierotti is about to refer to were the weapons that were used in the shooting or were, indeed, even capable of being used in this shooting. These weapons are being referred to at this point simply for the purpose of giving the total picture of what was taken from the hotel room at the time, but there is no suggestion that these were the weapons that were used or even capable of being used in the shooting in this case."

The State trooper testified that he had searched the defendant's room. The defendant seasonably objected to the characterization of the room as his. It would have been better had there been a fuller foundation for the characterization of a room in a place of public accommodation as the defendant's room. ¹ See Commonwealth v. McLaughlin, 352 Mass. 218, 229, 224 N.E.2d 444, cert. denied, 389 U.S. 916, 88 S.Ct. 250, 19 L.Ed.2d 268 (1967). Defense counsel, who knew what the trooper's testimony was expected to be, did not ask for a voir dire hearing on this point, did not move to strike the witness's characterization of the room, and did not cross-examine the trooper to challenge the basis of his view that the room was the defendant's. In light of our conclusion that this evidence was not admissible on another ground but that its admission was not prejudicial, we need not decide whether there was an ample foundation laid for its admission. The defendant's more substantial argument is that the judge should not have admitted evidence that the defendant possessed weapons (and ammunition for weapons), none of which could have been the murder weapon.

The fact that, at or about the time of a crime, a defendant had a weapon that could have been used in committing the crime is admissible in the judge's discretion. "[I]t is commonly competent to show the possession by a defendant of an instrument capable of being used in the commission of the crime, without direct proof that that particular instrument was in fact the one used." Commonwealth v. O'Toole, 326 Mass. 35, 39, 92 N.E.2d 618 (1950). See Commonwealth v. Watkins, 375 Mass. 472, 491, 379 N.E.2d 1040 (1978) (considering the interval between the time of the crime and the time the defendant was found to have a weapon); Commonwealth v. Bartolini, 299 Mass. 503, 512, 13 N.E.2d 382, cert. denied, 304 U.S. 565, 58 S.Ct. 950, 82 L.Ed. 1531 (1938) (possession, and familiarity with the use, of a knife to dismember the victim's body "alone would fall far short of proving guilt, but in connection with the other evidence in this case, it had some legitimate probative force"). The fact that a defendant had a weapon that could have been used in the commission of a crime is relevant as a link in tending to prove that the defendant committed that crime. See Commonwealth v. Drayton, 386 Mass. 39, 48, 434 N.E.2d 997 (1982); Poirier v. Plymouth, 374 Mass. 206, 210, 372 N.E.2d 212 (1978); Commonwealth v. Rodriguez, 364 Mass. 87, 94, 300 N.E.2d 192 (1973); United States v. Ravich, 421 F.2d 1196, 1204 (2d Cir.), cert. denied, 400 U.S. 834, 91 S.Ct. 69, 27 L.Ed.2d 66 (1970). Of course, circumstances may be such that the danger of prejudice to the defendant from the disclosure will outweigh the probative value of the evidence. See Commonwealth v. Caine, 366 Mass. 366, 371, 318 N.E.2d 901 (1974); United States v. Ravich, supra. In the exercise of discretion, a judge may ameliorate possible prejudice by instructing the jury, on request or on his own motion, concerning the purpose for which the evidence is admitted. See Commonwealth v. Monsen, 377 Mass. 245, 252, 385 N.E.2d 984 (1979); Commonwealth v. Caine, supra. It can be a close question whether a trial judge exercised discretion properly in admitting evidence of a defendant's possession of a weapon that could have been used in a crime. See United States v. Robinson, 560 F.2d 507, 515-516 (2d Cir.1977), cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978); id. at 518, 522 (Oakes, J., dissenting).

The issue in the case before us involves weapons (and items associated with weapons) that could not have been used in the killing. We have noted that the evidence established that the victim was killed by a .38 caliber bullet. The judge was thus warranted in his discretion in admitting the .38 caliber bullets and the ammunition holder for .38 caliber bullets found in the defendant's room. The admission in evidence of two .32 caliber revolvers and ammunition for other than .38 caliber weapons, said to have been in the defendant's possession, cannot be justified, however, on the traditional ground of relevancy. See Walker v. United States, 490 F.2d 683, 684-685 (8th Cir.1974) (improper to admit pistol not similar to one used in crime). Cf. United States v. Walters, 477 F.2d 386, 388-389 (9th Cir.), cert. denied, 414 U.S. 1007, 94 S.Ct. 368, 38 L.Ed.2d 245 (1973) (discussing relevancy and prejudice). There is nothing in the opinion in United States v. Ravich, supra, that supports the view, as the Commonwealth argues, that weapons not possibly associated with a crime are admissible as tending to prove that a defendant, who had those weapons, was the criminal. See United States v. Robinson, supra at 513.

The fact that the defendant had weapons and...