Com. v. Whitney

• Decision Date: 28 April 2005
• Docket Number: No. 01-P-229.,01-P-229.
• Citation: 63 Mass. App. Ct. 351,826 N.E.2d 219
• Parties: COMMONWEALTH v. John WHITNEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

826 N.E.2d 219

63 Mass. App. Ct. 351

COMMONWEALTH v.John WHITNEY.

No. 01-P-229.

Appeals Court of Massachusetts, Norfolk.

Argued September 20, 2004.

Decided April 28, 2005.

COPYRIGHT MATERIAL OMITTED

Joseph F. Krowski, Brockton, for the defendant.

Varsha Kukafka, Assistant District Attorney, Dedham, for the Commonwealth.

Present: GELINAS, SMITH, & COWIN, JJ.

COWIN, J.

The defendant, charged with the murder of Alberto Portal(Alberto or victim), was convicted by a jury of murder in the second degree, and he appealed.He subsequently filed a motion for new trial, which was denied without appeal.He thereafter filed a second motion for new trial, which was also denied, and on this occasion he appealed from the order of denial.The direct appeal and the appeal from the order denying the second motion for a new trial have been consolidated.The defendant asserts that (1) his motion for a required finding of not guilty filed at the close of the Commonwealth's case should have been allowed; (2) there was ineffective assistance of counsel in several respects; (3)he was prejudiced by inappropriate remarks by the trial judge in the course of jury deliberations; and (4)he was prejudiced by the use of an out-of-court statement by the victim's wife erroneously admitted as a spontaneous utterance.Discerning neither error on the part of the judge nor ineffective assistance of counsel, we affirm both the judgment of conviction and the order denying the defendant's second motion for new trial.We set forth the evidence in the course of the opinion.

1.Sufficiency of the evidence.Applying the principle that the evidence supporting conviction is sufficient if any rational juror could have found the essential elements of the crime beyond a reasonable doubt, seeCommonwealth v. Latimore,378 Mass. 671, 677-678, 393 N.E.2d 370(1979), we review the evidence that the jury could have credited.In early December, 1997, the defendant asked his friend, Thomas Pratt,¹ an acquaintance for more than twenty-five years, for a ride that evening.Pratt met the defendant in Natick at approximately 6:30 P.M., and they drove in Pratt's automobile for about forty minutes to the Hopedale-Mendon area.²They then continued to a restaurant in Milford, where they purchased food and ate in Pratt's car.The defendant stated that it was still too early to leave, and the men waited an additional one-half hour.They then left, driving on Route 109 in the direction of Millis and Franklin.

At one point, the defendant directed Pratt to leave Route 109 and drive up a hill.They continued driving for two to three miles, at which time the defendant told Pratt to stop.They had, by this time, arrived at a location approximately 200 to 300 feet away from the home of the victim, Alberto.The defendant got out of the car, and instructed Pratt to meet him in one-half hour at the Sportsmen's Lounge in Millis.Pratt did as he was told, and drove to the Sportsmen's Lounge.

Approximately one hour later, the defendant arrived at the lounge, and stated that he had to drop a car off and needed Pratt to follow him in his automobile.The defendant, now driving the other automobile, headed down Route 109 toward Medfield, with Pratt following.To avoid a traffic jam caused by an accident on Route 109, the defendant, with Pratt continuing to follow, made a U-turn, left Route 109, and headed to Norwood on Route 1.He entered an Enterprise Rent-a-Car parking area, drove to the back of a building, and parked.He then got back into Pratt's car.

Pratt drove the defendant to the defendant's ex-wife's home.While the defendant seemed neither nervous nor upset, he spoke little during the ride.However, upon reaching his ex-wife's home, but before getting out of the car, he told Pratt that if anyone, especially the police, inquired, he(Pratt) should say that they had spent the night drinking at the American Legion Hall in Natick.

Both Alberto and a Chevy Lumina automobile registered in his name with license plate number 901-WOR were reported missing as of December 4, 1997.Approximately three months later, the Chevy Lumina registered to the victim was located by police in the Enterprise Rent-a-Car parking area.The victim's partially decomposed body was found in the trunk.It was subsequently determined that death had been caused by blunt head trauma approximately three months earlier.Pratt identified the spot at which the defendant had left the vehicle he had driven in early December.In addition, Pratt took the police to the area near the Portal home at which he had dropped off the defendant.

The victim had been employed by Consolidated Delivery & Logistics as a line haul driver operating between Massachusetts and Connecticut.His supervisor testified that he was never late for work.His regular shift began in Walpole at 10:00 P.M. and the drive from his home to the Walpole site took about twenty minutes.When he did not appear at work on the night of December 4, 1997, his employer's dispatcher telephoned the Portal residence shortly after 11:00 P.M. and apparently awakened the victim's wife, Laura Portal(Laura).Told that Alberto had not reported to work, she stated that he had left the house at 9:30 P.M.³

The defendant had had a previous relationship with Laura resulting in the birth of a son.About two months before Alberto's disappearance, the defendant told a friend, Tammy Buffum, that he was seeing Laura more frequently.Buffum in fact accompanied the defendant to the victim's house in early December, 1997, so that he could visit his son and bring him a present.On the way to the house, the defendant informed Buffum that the victim had broken his son's arm.After the visit (during which Buffum remained in the car), he informed her that his son's arm was only sprained, but that the victim did not treat the boy well.

Following Alberto's disappearance, the defendant met or visited with Laura on several occasions, and spoke to her on the telephone regularly.On March 13, 1998, the defendant was arrested.As he was led from his home by police, he stated: "I'm not a murderer.I didn't dump no body.I just dropped a car off."

The above-described chain of circumstantial evidence was sufficient to convict.In arguing otherwise, the defendant relies on the proposition that evidence of a defendant's presence at a crime scene, motive, and consciousness of guilt is not enough, even in combination, to sustain a guilty verdict.SeeCommonwealth v. Curtis,318 Mass. 584, 585-587, 63 N.E.2d 341(1945);Commonwealth v. Salemme,395 Mass. 594, 599-602, 481 N.E.2d 471(1985);Commonwealth v. Mazza,399 Mass. 395, 398-400, 504 N.E.2d 630(1987).That proposition may well be true, but it is inapplicable here because there was considerable additional evidence as well.The jury were entitled to credit not only Pratt's testimony that he drove the defendant to a location within two to three hundred feet of the victim's house, but also the evidence that, on the night the victim was determined to be missing, the defendant left that area in a car matching the description of a vehicle subsequently identified as belonging to the victim; the defendant deposited the car at the Enterprise Rent-a-Car parking lot; and the car, with the victim's decomposing body in the trunk, was discovered in the same spot three months later.In addition, the jury could permissibly find that the defendant, with Pratt's unwitting assistance, timed his arrival at the victim's residence to coincide with the victim's routine of leaving for work at a particular hour.When motive (reconciliation with Laura; anger at the victim's treatment of his son) and consciousness of guilt (the defendant's spontaneous declaration to the police that he had just dropped a car off; his instruction to Pratt to lie about their activities on that day) are added, the evidence in its totality, evaluated in the light most favorable to the Commonwealth, satisfies the Latimore criteria.

The defendant's argument rests largely on what he maintains is an absence of evidence of guilt.This is not the calculus; it is the sufficiency of the evidence that is in fact introduced that is to be determined.Whether allegedly absent evidence detracts from evidence that is otherwise adequate to support a guilty verdict raises questions of credibility and weight that are for the jury to resolve.SeeCommonwealth v. Martino,412 Mass. 267, 272-273, 588 N.E.2d 651(1992).The absence of forensic evidence, particularly given the defendant's opportunity to dispose of blood or a weapon, does not alter the conclusion that other evidence was sufficient for a determination of guilt.The defendant's contention that there was no evidence of motive⁴ or opportunity to commit the crime, and little, if any, evidence of consciousness of guilt, is simply wrong.

The defendant complains that there was a lack of evidence that he knew of the victim's routine of leaving his home about 9:30 P.M., and that accordingly it could not be inferred that he timed his arrival at the residence to coincide with the victim's departure.However, given the evidence of the victim's punctuality in leaving for work, and given the evidence that the defendant intentionally delayed leaving for the victim's residence on the night in question, the jury could permissibly infer that the defendant knew the victim's schedule, and that his timing was knowing and purposeful.Furthermore, in view of the defendant's relationship with Laura, he could well have obtained the information from her.

Finally, Pratt's uncertainty regarding the color of the victim's automobile and the date of the event created issues which the jury resolved adversely to the defendant.We note also that what the defendant characterizes as a Commonwealth "trick" to enter in evidence the date of December 4, 1997(by means of putting the date in a question to Pratt) passed without objection by the defense.Having examined ...