Com. v. Vinnie

• Decision Date: 12 August 1998
• Parties: COMMONWEALTH v. Raymond P. VINNIE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 896

698 N.E.2d 896

428 Mass. 161

COMMONWEALTH v. Raymond P. VINNIE.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued April 7, 1998.

Decided Aug. 12, 1998.

Daniel J. Johnedis, Woburn, for defendant.

Stephanie Martin Glennon, Special Assistant District Attorney, for the Commonwealth.

Raymond P. Vinnie, pro se, submitted a brief.

Before WILKINS, C.J., and ABRAMS, LYNCH, FRIED and MARSHALL, JJ.

MARSHALL, Justice.

The defendant, Raymond P. Vinnie, was convicted of murder in the first degree. The jury had received instructions on theories of deliberate premeditation and extreme atrocity or cruelty. On appeal, he claims a series of errors by the Commonwealth, the trial judge, and his trial counsel. We affirm the conviction and the judge's ruling on Vinnie's postconviction motion, and we decline to exercise our power under G.L. c. 278, § 33E, to order a new trial or reduce the verdict.

We review those claimed errors that were preserved before or during trial, and those that were resurrected by the judge in postconviction rulings on Vinnie's motion for a new trial ¹ according to standards more favorable to the defendant than errors claimed on appeal that were not preserved or resurrected. See Commonwealth v. Hallet, 427 Mass. 552, 552-555, 694 N.E.2d 845 (1998). Constitutional errors that were preserved or resurrected are reviewed to determine whether or not they were harmless beyond a reasonable doubt, unless the constitutional right infringed is "so basic to a fair trial that [its] infraction can never be treated as harmless error." Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See Yates v. Evatt, 500 U.S. 391, 402-405, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991); Commonwealth v. Garcia, 379 Mass. 422, 441-442, 399 N.E.2d 460 (1980). ² Non- constitutional errors, preserved or resurrected below, are reviewed according to a nonprejudicial error standard. An error is nonprejudicial only "[i]f ... the conviction is sure that the error did not influence the jury, or had but very slight effect.... But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected." Commonwealth v. Flebotte, 417 Mass. 348, 353, 630 N.E.2d 265 (1994), quoting Commonwealth v. Peruzzi, 15 Mass.App.Ct. 437, 445, 446 N.E.2d 117 (1983). We review the other claimed errors, raised only on appeal, to see if they created a substantial likelihood of a miscarriage of justice. ³ Commonwealth v. Carter, 423 Mass. 506, 514, 669 N.E.2d 203 (1996).

1. Facts. We recite the facts in the light most favorable to the Commonwealth, reserving certain details for discussion in conjunction with the issues raised. Commonwealth v. Reed, 427 Mass. 100, 101, 691 N.E.2d 560 (1998). On the morning of April 12, 1990, Adlene Hardison found the body of her sixteen year old son, Charles, in the basement of her Milton home. He had died as a result of several gunshot wounds to the head and chest. At the time of the murder, Vinnie resided with Charles, Charles's mother, and her elderly grandmother. Vinnie and Charles's mother were engaged in 1986 and took up residence together in Milton. During the fall of 1989, however, their relationship deteriorated, punctuated by frequent arguments and marred by incidents of physical abuse of Charles's mother. In December, 1989, or January, 1990, Charles's mother asked Vinnie to move by March 1, 1990.

Charles repeatedly expressed his wish to Vinnie; to his mother; to his father, Larry Hardison; and to others, that Vinnie leave the house. On the morning of January 28, 1990, Charles found his mother crying in response to Vinnie's yelling and smashing a glass on the floor, and Charles said to Vinnie, "Nobody asked you to move back here." Shortly thereafter, Vinnie shoved Charles against a wall. In March and again in early April, Charles asked his mother when Vinnie, who had not moved out yet, would be doing so.

Charles last was seen alive at 7 P.M. on April 11, 1990, by his father, who had stopped by the Milton residence to drop off strings for Charles to restring a tennis racket. Charles's mother returned home from an evening class at approximately 10 P.M., went to the kitchen, saw the tennis strings and racket, and closed the basement door after noticing it ajar. Early the next morning, she discovered Charles's body in the basement. Vinnie had left the house shortly before Charles's mother discovered the body.

Police officers investigating the murder scene saw white powder together with a torn paper envelope and a ripped package. Two days later, Charles's mother discovered under Charles's bed rubber gloves and twenty-eight glassine packets, stapled closed, containing white powder. The white powder in the basement and under the bed proved to be baking soda. A special agent of the United States Drug Enforcement Administration testified that the circumstances were "completely inconsistent with an actual drug transaction or a facsimile drug transaction."

Tracy West, a long-time acquaintance of Vinnie, testified that in early 1990, Vinnie said he was having problems with Charles and wanted to teach Charles a lesson by having someone wound him. West recruited Derrick Sealy to make threatening telephone calls to the victim's house and to shoot and wound the victim. Sealy, after taking $1,000 and a gun from West, provided by Vinnie, did not follow through with the plan to wound Charles. On the afternoon of April 11, 1990, West visited Vinnie at his print shop, where he watched and then assisted Vinnie in filling glassine bags with baking soda. Vinnie told West that he had a "mission," and that he intended to kill Charles. Significant additional evidence implicated Vinnie in Charles's murder.

2. The alibi defense. Vinnie argues that several errors combined to deprive him of the opportunity to present evidence of an alibi. Critical to his alibi is the time that Charles was shot. On the evening of the murder, Charles spoke with several high school friends on the telephone. At the end of his conversation with Antoinette Barrow at some time between 8:30 P.M. and 8:50 P.M., Charles said that he thought he heard his mother coming in ⁴ and that he would call Antoinette back shortly. He did not call back. A neighbor testified that she saw Vinnie's car at the Hardison home when she went out at 8 P.M. or 8:15 P.M., and Vinnie's car was no longer there when she returned within ten to fifteen minutes.

Vinnie maintained that he was at his print shop in Brockton on the evening of the murder until closing at 9:15 P.M. or 9:30 P.M. He then went to the home of a friend, Hal Pompei, arriving at about 10 P.M., leaving at about 11 P.M., and returning to the Hardison home. In an interview with State Trooper Joseph Flaherty, ⁵ Vinnie claimed that he had a twenty-minute to thirtyminute telephone call with Pompei between 7:30 P.M. and 8:30 P.M. Telephone records showed that the call had been made to Pompei at 6:09 P.M., and lasted nine minutes. Several witnesses testified at the grand jury that they had seen "a black gentleman," presumably Vinnie, locking up the print shop at about 9:30 P.M. Vinnie's trial counsel did not call these individuals in his case-in-chief, but he did bring out this information in cross-examining Flaherty. Flaherty also testified that, having traveled the route from the print shop to the Hardison home, the driving time was approximately twenty-six minutes.

First, Vinnie claims that the Commonwealth's refusal to narrow the time frame that the murder occurred in its indictment or bill of particulars, ⁶ coupled with its motion for a notice of alibi pursuant to Mass. R.Crim. P. 14(b)(1)(A), 378 Mass. 874 (1979), was designed to compel the defendant to disclose the place he claimed to have been at the time of the offense without committing the Commonwealth to any specific time period. This alleged prosecution strategy, Vinnie argues, tilted the constitutional balance struck by the reciprocal discovery provisions of rule 14(b)(1) in favor of the Commonwealth, and violated the defendant's right to due process. Vinnie ignores in this argument that, from the inception of the police investigation, Vinnie was on record as claiming to be at the print shop during the evening hours of April 11, 1990, until 9:30 P.M. ⁷ In light of that information, we cannot discern how the Commonwealth, even if it had engaged in the claimed procedural maneuver, could have gained new information concerning Vinnie's whereabouts for purposes of an alibi.

Noting that the effect of particulars is to "bind and restrict the Commonwealth as to the scope of the indictment and the proof to be offered," Commonwealth v. Hare, 361 Mass. 263, 270, 280 N.E.2d 138 (1972), Vinnie further argues that he was entitled to the Commonwealth's specification of the time of the murder and the benefit of the binding effect that such specification would have had at trial. We have cautioned, however, that judges should not order "particulars which, in their requirement for detail or otherwise, amount to the imposition of a straitjacket on the prosecution." Commonwealth v. Baker, 368 Mass. 58, 77, 330 N.E.2d 794 (1975). We do not endorse a defendant's right to specification of a time frame that is narrower than the totality of the Commonwealth's relevant evidence, notwithstanding any minor inconsistencies, may warrant. Here, the Commonwealth could have narrowed the time frame to the evening hours beginning around 8 P.M. on the fatal day. Even if, however, the Commonwealth erred in not stating such a narrower time frame, we fail to see how any such failure, in light of Vinnie's full access through discovery to the Commonwealth's evidence, was prejudicial or denied him his constitutional rights to present a defense and to a fair trial. Any error...