Commonwealth v. Allison

• Decision Date: 09 March 2001
• Citation: 434 Mass. 670,751 NE 2d 868
• Parties: COMMONWEALTH v. RICHARD ALLISON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

434 Mass. 670

751 NE 2d 868

COMMONWEALTH v. RICHARD ALLISON.

Supreme Judicial Court of Massachusetts, Middlesex.

March 9, 2001.

July 25, 2001.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, & COWIN, JJ.

James W. Rosseel for the defendant.

Margaret A. Peterson, Assistant District Attorney, for the Commonwealth.

SPINA, J.

The defendant, Richard Allison, was convicted by a jury of (1) murder in the first degree on a theory of extreme atrocity or cruelty; (2) armed robbery; and (3) perjury. The defendant filed a motion for a new trial with the county court while his appeal was pending. A single justice of this court transferred the motion to the Superior Court pursuant to G. L. c. 211, § 4A. After a hearing, the motion for a new trial was denied. In this consolidated appeal of the defendant's convictions and the denial of his motion for a new trial the defendant claims error in (1) the denial of his motion for a required finding of not guilty as to joint venture; (2) the denial of his motion for a bill of particulars; (3) the denial of his motion to sever the trial of the perjury indictment from that of the murder and armed robbery indictments; (4) various evidentiary rulings; (5) the prosecutor's misconduct in the opening statement and closing argument; and (6) the denial of his motion for a new trial, which alleged that he was prejudiced by a conflict of interest between his trial counsel and counsel for codefendants by virtue of their office-sharing arrangement. The defendant also asks us to exercise our power under G. L. c. 278, § 33E, and order a new trial or direct the entry of a verdict of murder in the second degree or manslaughter. We affirm the convictions.

1. Facts. We summarize the facts the jury could have found, reserving other details for discussion of the issues presented. On April 17, 1994, Thomas Moran, the victim, left his girl friend's house at approximately 4 P.M. He went to a basketball court at Harris Park in East Somerville where he met the defendant, Gerald Sullivan, Jeffrey Hardy,¹ Christopher Rogovich, and other friends. They spent most of the afternoon playing basketball and drinking beer. At one point, Sullivan and Hardy left to buy some marijuana treated with PCP, or "dust." The defendant, Sullivan, Rogovich, and Moran smoked the dust. The effects of the drug were rather weak, and Moran began to tease them, claiming that the drugs were fake and that Sullivan and Hardy were "chumps" and "idiots." Hardy and Sullivan became increasingly angry as Moran persisted.

At approximately 8 P.M., the defendant, Sullivan, Hardy, and Moran set out for a bar in Everett in a car driven by Hardy. En route they stopped at Jackie Vargus's apartment in Everett, where they drank and talked. Moran continued to tease Sullivan and Hardy about the drugs. Sullivan and Hardy telephoned Steven Murphy, and then drove to his house in Everett. Murphy gave them a loaded .32 semiautomatic handgun and showed them how to use it. Sullivan and Hardy returned to Vargus's apartment with the loaded gun.

The group then went to a bar. At approximately 10 P.M., Hardy told Rogovich he wanted to leave the bar, but without Moran. Sullivan, Hardy, the defendant, and Rogovich left, but Moran caught up with them. They drove away in Hardy's car. Hardy stopped on Mystic Avenue in Medford. He whispered to Rogovich to get rid of Moran, and then meet him at a Dunkin' Donuts shop. The entire group, however, including Moran, ended up at Dunkin' Donuts. As they were leaving Dunkin' Donuts, Hardy asked Moran loudly and repeatedly if he was going home. Annoyed, Moran asked if they were trying to get rid of him. Hardy drove to Moran's girl friend's house in Somerville. Moran got out of the car and yelled, "You're nothing but a fucking punk, Jeff," and "Youse guys got beat. Youse guys ain't nothing but fake gangsters." Hardy then invited Moran back. Moran got back in the car.

Hardy drove up Route 93 to South Border Road and stopped in a wooded area. The defendant, Hardy, and Sullivan walked to a grassy area and talked for a few minutes. When they returned, Hardy told Moran and Rogovich that they were going to meet the drug dealers who sold them the fake dust. They drove to a school yard near Columbus Park in Medford and walked to a baseball field. Hardy "positioned people" in certain places and told them from what direction the drug dealers would be coming. Sullivan pointed a gun at Moran's head and pulled the trigger. The gun misfired and Moran said, "Get that fucking gun out of my face." Hardy demanded the gun and shot Moran in the face. Moran covered his face with his hands and said, "Hardy shot me." Hardy said, "Now you'll shut your fucking mouth." Moran fell to the ground. The defendant, Sullivan, and Hardy stabbed him repeatedly, while Moran pleaded with them to stop. Sullivan said, "Get his money, get his wallet." Moran lunged at Sullivan. Rogovich, who testified to these events, heard another gunshot, then returned to Hardy's car where he was joined by Sullivan, who was carrying a bloody knife. Sullivan sat in the driver's seat and "peeled out" of the lot.

The defendant took a cab to a bar in Everett where he stayed for approximately forty-five minutes. He left the bar and went to Steven Murphy's house. The defendant told Murphy that he needed to talk. The defendant then dumped the gun that Murphy had given to Sullivan and Hardy earlier that evening onto the bed. There were no bullets left in the clip. The defendant told Murphy: "We just did Tommy.... Jeff, Gerry, Rogie, and me just killed Tommy down at Columbus Park." The defendant continued, "We just kept stabbing him ... because he wouldn't go down." The defendant added, "We tried sawing his head off, but it was too hard." The defendant then asked for something to wear and asked Murphy what to do about the gun. Finally, the defendant asked Murphy for a shovel because "Tommy was just laying there out in the open." Sometime later, Sullivan and Hardy arrived at Murphy's house. Sullivan asked how much money Moran had. The defendant pulled out $1,000, divided it among the three of them, and left the apartment.

Moran's body was discovered at approximately 5:30 A.M. the next day, with seventy-nine stab wounds to the head, face, neck, chest, arms, legs, and back, as well as a gunshot wound to the face. The medical examiner testified that it was possible the victim had been alive during the infliction of all the injuries. Moran's clothes had a torn pocket. Evidence was presented at trial that Moran left the apartment that day with approximately $1,000 in his pocket.

On May 25, 1994, the defendant testified before a grand jury and denied participating in, or having any information about, the murder. On June 23, 1994, the grand jury returned indictments against the defendant for the murder and armed robbery of Moran, and for perjury stemming from his testimony before the grand jury. The grand jury also returned indictments against Sullivan and Hardy for their part in the murder and armed robbery. They all received separate trials.

The defendant's theory at trial was that he did not, as principal or joint venturer, shoot, stab, or rob Moran. The defendant did not testify at trial, but relied on the testimony of a friend, Moran's mother, and an attorney for statements he made consistent with his theory. The defendant also attempted to impeach the testimony of the two key Commonwealth witnesses, Rogovich² and Murphy.³

2. Sufficiency of the evidence of a joint venture. At the close of the Commonwealth's case, the defendant moved for a required finding of not guilty. The motion was denied. The motion was renewed at the close of all the evidence, and again it was denied. On appeal, the defendant argues that the evidence was insufficient to support convictions of murder and armed robbery on the basis of joint venture.⁴ When reviewing the sufficiency of the evidence as to joint venture, we consider the evidence in the light most favorable to the Commonwealth and ask whether a rational jury could have found beyond a reasonable doubt that the defendant was "(1) present at the scene of the crime, (2) with knowledge that another intends to commit the crime or with intent to commit a crime, and (3) by agreement is willing and available to help the other if necessary." Commonwealth v. Bianco, 388 Mass. 358, 366-367,S.C., 390 Mass. 254 (1983). Proof that the defendant shared the requisite mental intent needed for a conviction may be met with circumstantial evidence. See Commonwealth v. Lynch, 428 Mass. 617, 621 (1999).

The defendant first contends that the trial judge erred in permitting, over his objection, Rogovich and Murphy to testify as to the statements of Hardy and of Sullivan under the joint venture exception to the hearsay rule, and that this evidence must be excluded when determining the sufficiency of the evidence of joint venture. Under that exception, "[o]ut of court statements by joint criminal venturers are admissible against the others if the statements are made during the pendency of the criminal enterprise and in furtherance of it." Commonwealth v. Clarke, 418 Mass. 207, 218 (1994). "Statements may be introduced under this exception only if the existence of the joint criminal venture is shown by some other evidence." Commonwealth v. Colon-Cruz, 408 Mass. 533, 543 (1990). The defendant's own statements to Murphy and Rogovich's testimony about the manner in which the killing occurred provided ample basis to establish the existence of a joint venture to justify the admission of the hearsay statements of Hardy and Sullivan. Moreover, operative statements evidencing the existence of an agreement, i.e., verbal acts, are not hearsay, but are independently admissible. See Commonwealth v. McLaughlin, 431 Mass. 241, 246 (2000). Sullivan's statement, "Get his money, get his wallet," is such a statement. The joint venture hearsay exception, therefore, does not apply to that...