Com. v. Young
| Decision Date | 03 December 1993 |
| Docket Number | No. 92-P-1332,92-P-1332 |
| Citation | 621 N.E.2d 1180,35 Mass.App.Ct. 427 |
| Parties | COMMONWEALTH v. Dion YOUNG (and three companion cases 1 ). |
| Court | Appeals Court of Massachusetts |
Dana A. Curhan, Boston, for Frank C. Young, Jr.
Jeremy M. Carter, Mashpee, for Dion Young.
Julia K. Vermynck, Asst. Dist. Atty., for Com.
Before PERRETTA, KAPLAN and GILLERMAN, JJ.
The conviction of each of the brothers Young, Dion and Frank, on the charge of murder in the second degree 2 was the outcome of a series of events that began with a brawl near a 7-Eleven convenience store in Hyannis on June 26, 1990, and ended three weeks later at a birthday party in Barnstable where Anthony Edwards (Tony) was shot dead.
Each brother claims that his motion for a required finding of not guilty should have been allowed and that prejudicial errors were committed in certain other respects. We shall discuss the motions first, summing up the evidence most favorable to the Commonwealth (culled from the testimony of twenty-nine witnesses), see Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), but including only the evidence admitted up to the time the Commonwealth rested and when the motions were filed. 3 If the evidence, together with inferences therefrom which are not too remote, is sufficient to permit a rational juror to find the essential elements of the crime beyond a reasonable doubt, the judge was correct in denying the motions. Ibid.
1. The events of June 26. According to one witness, a regular Barnstable crowd, along with other young men from Harwich and Mashpee, hung out at the North Street 7-Eleven in Barnstable during the summer of 1990. For a reason no one clearly remembered, perhaps too trifling to recall, a fist fight broke out which eventually engaged Dion, Frank, and their friends on one side, and Tony and his friends on the other side. The State police arrived. Tony started to leave the area when Frank, coming up on Tony from behind, struck him on the head with a plank of wood, bringing him to the ground. Frank and Dion then ran off together, with Dion threatening,
2. The shooting episode. The testimony on the events surrounding the shooting was terse and to the point. About one week after the brawl and approximately two weeks before the party, which began in the early morning hours of July 15, 1990, Luther Culberson, a friend of Frank, test-fired a .25 caliber handgun into the air. Sparks emerged from the weapon, and Culberson gave the gun to Frank to be cleaned. Frank did not return the gun.
About one week before the party, Dion arranged for Tanya Bass, the mother of his child who was then living in Mississippi and about to come to Massachusetts, to bring a handgun that Dion had previously left with her. When Bass arrived in Massachusetts, Dion took the gun from her and did not return it. Bass identified the weapon she brought to Dion. It was a .22 caliber handgun. A ballistics expert later testified this handgun was consistent with the weapon that fired the projectile recovered from Tony's body.
On the day of the party a friend of Dion who had a firearms identification card, at Dion's request, purchased a box of ammunition and gave it to Dion. That afternoon Dion was seen cleaning a handgun. That evening, before the party, the friend visited with Dion. While he was there, Dion fired the weapon into the air.
On the afternoon of the party, Culberson and Frank were at a barbecue together. Culberson told Frank not to bring the .25 caliber handgun to the party that night. Frank said, "cool." Further on in the conversation with Culberson, Frank said he was wondering if Tony was going to be at the party. Later that night, at the party, Culberson saw the imprint of the gun in Frank's back pocket.
Dion and Frank did not arrive at the birthday party together. Culberson and Frank arrived around 12:15 A.M., left within a short time, and returned around 1:15 A.M. Dion was there, along with some of the friends of the brothers. Tony arrived after Dion but before Frank.
There were signs of trouble before Frank returned to the party. In the basement of the house where the partygoers had gathered, a friend of Tony put his arm around Dion and told him that Frank had a problem because he hit Tony in the head with a stick. The friend urged Dion and others to stay out of it so that Frank and Tony could settle the dispute. Tony, who heard the conversation, was "wild" and "out of control." (The autopsy showed he had a blood alcohol level of .13 and fifty micrograms of cocaine in his bloodstream at the time of death.) Jumping up and down, Tony said, About this time, Frank arrived, and Dion went over to his brother and talked with him. He said to Frank, Frank put his hand up underneath his shirt and said to Culberson, "Come on, Tip [Culberson's nickname]." Culberson said,
At this point Tony walked up to Dion and Frank, and said to Frank, Frank stood his ground, and Tony went on: Frank said, Tony pressed on: While Tony was thus challenging Frank, Dion had a handgun in his right hand by his side. Someone then stepped into the middle of this confrontation and told the group to take the fight outside. Frank and Dion proceeded upstairs, surrounded by their friends, and thence out of the house to a driveway and a yard. Tony left the basement through the bulkhead door.
Once outside the house, Frank and Dion stood beside each other at the street end of the driveway near the steps of the house, making no effort to leave. Tony came out from behind the house with a stick in his hand, possibly a mop handle. Tony resumed his taunting of Frank: Frank said, Tony then swung the stick at Frank, missed him, hitting a tree behind Frank. Frank and Dion jumped back. Dion then stepped in front of his brother, a gunshot was heard, and sparks were seen. Dion had a "black tube" in his hand. The brothers immediately ran from the scene together.
Tony was shot but seemed not to know it. He was asked if he was hit. Tony said, He returned to the house where people told him he was shot. An ambulance was called; Tony was helped to go back outside the house where he said he was fainting. Then he collapsed and died. The .22 caliber bullet had perforated the right side of his heart, and perforated or injured his stomach, spleen, liver, left kidney and diaphragm. The wound was of the type that kills in seconds or minutes.
Two witnesses saw Dion, Frank and others running from the party down the road. One witness, parked around the corner, recognized Dion and heard him say, "I got that motherfucker." Another witness, a relative of Tony, ran after the brothers at a distance of about thirty feet. Frank turned around, pointed his .25 caliber handgun at the witness, and asked, "Who is that?" The witness replied, Frank said,
The group reached a friend's house nearby where they sat without talking. A cab was called. Frank went outside, saying he needed a breath of fresh air. The others followed outside, and waited for the cab. Dion and Frank talked briefly, Dion gave something to Frank, and Frank ran to the rear of the house where a red truck was parked, and returned as the cab arrived. Later a .22 caliber handgun and a .25 caliber handgun were found in the wheel well of the frame of the red truck. The .22 caliber weapon found in the red truck was the same weapon identified by Bass and, as we have said, was consistent with the weapon that fired the projectile recovered from Tony's body.
Frank and Dion returned to their apartment and later went to a friend's house in Hyannis. They appeared scared and tense. Dion said that "they did something and they was hiding." They ran to the back bedroom and stayed there until the police arrived to arrest them.
The brothers were brought to the Barnstable house of correction. Both Dion and Frank gave statements to the police. Dion denied that he or Frank shot Tony. Frank admitted that after Tony tried to hit him with the stick he reached into his back pocket, took the safety off the weapon, drew the gun up to waist level, and "offed the trigger" one time. 4
Later, still at the house of correction, a correctional officer, Rodney Lynch, overheard a conversation among the brothers, who were being held in adjacent cells, and Gary Little, who occupied the third of three cells in the cell block. In response to Little's description of his stabbing a person, Frank said, "Shooting someone is different than stabbing someone." The conversation turned to the birthday party. Frank and Dion talked about going to the party, and Frank said that they had gone there "with a mission." Shortly after that statement, Lynch heard Dion say, "Frank's gun did not go off."
3. Discussion. In support of his motion, Dion argues that the verdict of guilty of murder in the second degree was precluded because the evidence of provocation was sufficient to negate the element of malice.
We start with the recitation of established fundamentals. Malice is an essential element of the crime of murder. Commonwealth v....
To continue reading
Request your trial
-
Com. v. Sexton
...if, "at the climactic moment the parties consciously acted together in carrying out the criminal endeavor." Commonwealth v. Young, 35 Mass.App.Ct. 427, 435, 621 N.E.2d 1180 (1993). The defendant continuously kicked and punched Czyzewski while his brother repeatedly slammed Czyzewski's head ......
-
Com. v. Young
...with, and shooting of, an antagonist. The convictions were affirmed and further appellate review was denied. Commonwealth v. Young, 35 Mass.App.Ct. 427, 621 N.E.2d 1180, S. C., 416 Mass. 1108 (1993) (Young I).1, 2 The defendant then filed a Federal habeas corpus petition, which was denied i......
-
Com. v. Lombard
...point on which this case turns. The cases on which the Commonwealth relies, the Mercado and Fidler cases, and Commonwealth v. Young, 35 Mass.App.Ct. 427, 621 N.E.2d 1180 (1993), concern joint venture liability for assault and battery or for murder. In each of these cases, the evidence left ......
-
Com. v. Vega, 92-P-1571
...393 N.E.2d 370 (1979). See also Commonwealth v. Helfant, 398 Mass. 214, 216, 496 N.E.2d 433 (1986); Commonwealth v. Young, 35 Mass.App.Ct. 427, 428-429, 621 N.E.2d 1180 (1993). Evidence of anal penetration, the defendant argues, is In her testimony, the victim, untutored in the niceties of ......