Com. v. Wilson

• Decision Date: 07 July 1980
• Parties: COMMONWEALTH v. Robert Stanley WILSON (and thirteen companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1229

407 N.E.2d 1229

381 Mass. 90

COMMONWEALTH v. Robert Stanley WILSON (and thirteen companion cases

¹

).

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 6, 1980.

Decided July 7, 1980.

Ralph F. Champa, Jr., Somerville, for defendants.

Pamela L. Hunt, Legal Asst. to the Dist. Atty., Cambridge, for the Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, WILKINS and ABRAMS, JJ.

ABRAMS, Justice.

On December 31, 1975, Dr. Hugh Mahoney, his wife Ruth, and their fourteen-year-old son John were shot to death in their home in Tewksbury. For their participation in the Mahoney killings, Robert E. Smith and Robert Stanley Wilson were each convicted, following a trial by jury, on three indictments for murder in the first degree, three indictments for armed assault in a dwelling house, and one indictment for unlawfully carrying a firearm. ²

The defendants now appeal. G.L. c. 278, §§ 33A-33G. On the basis of a consolidated brief, they argue ³ (1) that the Commonwealth's failure to disclose to the defense prior to trial two allegedly exculpatory statements by one Steven Melchionda requires that a new trial be ordered and (2) that the trial judge abused his discretion in making certain evidentiary rulings. Additionally, the defendants argue two issues raised for the first time on appeal: (1) that in camera disclosures by defense counsel, which suggested that the defendants might testify contrary to facts learned by counsel in their investigation of the crimes, so prejudiced the defendants as to require that all charges be dismissed, or a new trial ordered; and (2) that their consecutive sentences for armed assault in a dwelling house (see note 2 supra ) must be vacated as duplicative. Lastly, the defendants urge that pursuant to G.L. c. 278, § 33E, we "reduce their present sentences as the Court deems appropriate."

We find no error at trial, and therefore affirm the convictions. It is, however, unclear whether the jury reached any or all of its verdicts of murder in the first degree on the basis of a felony murder theory grounded on an underlying felony of armed assault in a dwelling house. The sentences imposed on each defendant's convictions of "armed invasion" ⁴ must, therefore, be vacated, and the cases remanded for the imposition of new sentences as to these convictions only, such sentences to run concurrently with the sentences imposed for the defendants' convictions of murder in the first degree.

Since the existence of alternative and corroborating evidence is important to the resolution of several issues presented to us, we set out the evidence as it may have appeared to the jury in some detail.

The Commonwealth's case. During December, 1975, the defendants told several persons of their plans to commit a house robbery in Massachusetts. Two to three weeks before the end of December, Smith and Wilson spoke to Wilson's brother Donald ⁵ about a "job" in Massachusetts. The "job," Donald testified he was told, would net $500,000 in diamonds and $10,000 cash from a safe. The defendants told Donald that they needed one more person, and that Terry Milan was their first choice to go with them. Donald was to be the driver.

Milan, a close friend of Wilson, ⁶ testified that prior to December 15, he went with Wilson and one Robert Sparks, a "good fence" and antique dealer, to Tewksbury where Sparks pointed out the Mahoney house. Sparks, Milan said, told Wilson and himself that a safe in the house contained a substantial amount of money.

The defendants also spoke to Michael Renz in December, 1975, to see if he would go with them on a house robbery set up by Sparks. Renz, along with the defendants, frequented Stella's Sub Shop, a restaurant and bar in Keene, New Hampshire. The crime, the defendants told Renz, would yield "a lot of money and jewels." They were planning to use guns. Smith and Wilson added that, in addition to the two of them, Milan and Donald were in on the job. The plan, Renz testified, was that Donald would drive and that the others would enter the house, secure the persons inside, and steal the jewels and money. If Renz went, Smith and Wilson told him, he would be expected to go into the house. Renz said he could not participate if the job took more than a day. ⁷

Plans for the robbery were put into effect on December 30. That morning, Donald, driving his 1967 Oldsmobile automobile, picked up Smith and Wilson in Keene, New Hampshire, between 9 A.M. and 10 A.M. The defendants were carrying two suitcases, one blue, ⁸ one dark with brown trim. From Keene, Donald, Smith, and Wilson proceeded to Troy, New Hampshire, where Smith purchased some .38 caliber ammunition without signing for it. In Troy, they picked up Milan. The four then headed for Massachusetts.

In early or mid-afternoon, the men arrived in Tewksbury.. After purchasing gas and getting something to eat, the men drove around; Smith and Wilson said they were looking for Whipple Road. When they found the road, either Smith or Wilson pointed out the Mahoney house.

Once the house had been located, the men drove back and forth along the roads from the house to a motel, trying to learn the route. After an hour or two, they proceeded to the Tewksbury Holiday Inn, where Smith checked in to room 115. ⁹ After indicating generally that they might "hit" the house that night, Smith, Wilson, and Milan conferred behind a closed door in the bathroom. ¹⁰ After the conference, Donald was told that they would "hit" the house that night. Smith opened the blue suitcase and passed out handguns. ¹¹ The men again retraced the route between the motel and the house. ¹² Donald then let the men off near the house; all three were armed. About ten minutes later Donald received a call to pick up the men at the location where he had left them. ¹³ On his arrival, Smith told Donald that there were too many persons in the house, and he (Smith) had therefore decided to "call it off." The men returned to the motel room, and the defendants asked Donald to go out to get pizza. Donald drove to a shopping center and asked a police officer who was directing traffic where he could purchase some pizza. ¹⁴

The Wilson brothers, Smith, and Milan spent the night at the Holiday Inn, and part of the next day in a "big city" (probably Lowell), eating lunch and "goofing off." They returned to the Holiday Inn by mid-afternoon. Smith subsequently asked Milan to "go out and call the boys to find out what's happening." ¹⁵ Milan went out with Donald's car keys but returned in five or ten minutes to say that he had been unable to reach anyone.

Smith then indicated that he was "eager to find out what type of man this guy (i. e., Dr. Mahoney) was," so he asked Donald to drive him out to the Mahoney home where he could get into the house by asking to use the telephone. Smith changed his clothes, putting on the blue suit Rebecca Lemieux had seen packed in the blue suitcase. He and Donald then left the Holiday Inn; although Donald was not certain, he thought the time was 6 or 7 P.M. ¹⁶ Donald stopped the car close to the Mahoney house, and waited for Smith. "(N)o problem," Smith said when he returned to the car, describing Dr. Mahoney as "a very easy man to get along with, happy-go-lucky." They would, Smith said, do the job that night.

Once Smith and Donald returned to the motel, Smith called another bathroom conference with Wilson and Milan. When the three men emerged after ten or fifteen minutes, Donald asked Wilson what was going on, and was told the less he (Donald) knew, the better off he was. All Donald should know, Wilson added, was how to drive the others to the house, drop them off, and return to the motel where he should wait for a telephone call to come and pick them up.

As he had done the night before, Smith passed out three pistols, first checking to see that they were loaded. Wilson was given a .38 caliber Colt Special six-shot revolver, and Milan a "long barrel" .38. Smith kept the last gun, a .38 caliber Charter Arms five-shot, for himself.

Donald drove the men to a location near the Mahoney home. He then left and returned to the motel room. Approximately ten or fifteen minutes later Smith called and told Donald to "come get us." As he arrived at the place where he had dropped the men off, a snowball hit the car door. Wilson, Smith, and Milan jumped out from behind a snowbank, all hollering at the same time to "get out of here, quick," and to "get going, (g)et going." Donald cut through a driveway and headed for the Holiday Inn.

On the way back to the motel, Wilson said jokingly to Milan, "I think you shot me, bastard." Milan responded, "I told you I'd get you someday," and laughed. When the interior car light was turned on, Wilson looked at his right arm, and told Milan, "You really did shoot me." At this point, Donald asked what happened inside the house, but received no answer.

In the motel room, Donald looked at Wilson's arm, turned white, and appeared as if he were going to pass out. Smith gave Donald $20 and sent him to buy some liquor. When he returned, Donald poured part of the liquor on Wilson's wound, which Donald described as a pair of holes, very red and black, in Wilson's right forearm near the elbow.

Meanwhile, Milan was wiping down the room with one of the motel's towels to eliminate any fingerprints. Milan emptied the guns, and put the cartridges in his pocket. Smith packed, and within thirty minutes the four men left the room. At approximately 9 P.M., ¹⁷ the men were headed for New Hampshire, taking major highways in an effort to get there as quickly as possible. Smith was driving.

On the highway, sitting in the car's front seat, Donald heard "a tin sounding noise," and turned to see Milan flipping empty cartridges out the window. Once again, Donald insisted that he had a right to know what had occurred. Wilson agreed, and Smith began to tell Donald what had taken place.

Smith said, Donald testified, that he (Smith)...