Commonwealth v. Babbitt

• Decision Date: 02 November 1999
• Citation: 430 Mass. 700,723 NE 2d 17
• Parties: COMMONWEALTH v. KEVIN M. BABBITT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

430 Mass. 700

723 NE 2d 17

COMMONWEALTH v. KEVIN M. BABBITT.

Supreme Judicial Court of Massachusetts, Bristol.

November 2, 1999.

February 3, 2000.

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

Roger A. Cox for the defendant.

Elspeth B. Cypher, Assistant District Attorney, for the Commonwealth.

SPINA, J.

The defendant, Kevin M. Babbitt, was convicted by a jury of murder in the first degree of Wilbert Greene, Jr., on theories of deliberate premeditation and extreme atrocity or cruelty. David Rosado also was convicted of murder in the first degree of the same victim following a separate trial.¹ Witnesses testified at Babbitt's trial that Rosado had spoken about the murder in Babbitt's presence. Rosado did not testify. Babbitt claims that the admission of the witnesses' testimony violated the confrontation clauses of the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. We reject Babbitt's contentions. We affirm his conviction and decline to exercise our plenary power under G. L. c. 278, § 33E, to order a new trial or to enter a verdict of a lesser degree of guilt.

1. Facts. The jury could have found the following facts. Babbitt and Rosado lived in room 9 of a motel in Attleboro. The victim, Wilbert Greene, Jr., an African-American man, lived next door, in room 10. One evening in the middle of January, 1995, Babbitt and Rosado had a loud party in their room. The guests were Mark Bilsborough, Richard Dolan, Michael Hayward, Steven Richard, and Patrick Vigor. Racial slurs of various sorts were uttered; the doctrine of white supremacy was vigorously asserted, especially by Rosado. Someone in room 10 pounded on the wall that separated rooms 9 and 10, probably to signal annoyance at the volume of the music. Rosado pounded back and shouted racial epithets and violent threats at the person on the other side.

At about 11:30 P.M., Charlene Hall, an employee and resident of the motel, was awakened by screaming and yelling. She arose and for a few minutes watched Rosado and Babbitt kicking and punching someone, whom she could not identify, on the ground outside rooms 9 and 10. They were "beating the living daylights out of the person on the ground." After Hall yelled at Rosado and Babbitt to stop, they ran away. Later the two men returned and resumed their attack on the person on the ground. Again Hall told the men to stop, and again they left the scene. Babbitt told Hall the day afterward that someone other than Greene had been the victim of the beating, and that Greene had suddenly left the motel. Babbitt later showed Hall blood on the wall of room 10. Hall, who had seen Greene almost daily for almost two years, never saw Greene alive again.

Another resident of the motel, Matthew Nelson, was also awakened by noise late in the evening. He saw Babbitt and a second white male beating and kicking Greene on the ground. Babbitt was wearing work boots. Greene was making ineffectual efforts to protect himself from the blows, which his attackers appeared to be directing at the area around his face. After the beating went on for about ten minutes, Nelson yelled at Babbitt and the second white male. The two men dragged Greene toward rooms 9 and 10.

Not long afterward, Steven Richard, a seventeen year old young man who lived at the motel with his mother, was asked by Babbitt to come with him to room 10. Richard saw a black man lying naked on the mattress. Richard asked if the man needed medical attention. Babbitt responded, "No, this [racial epithet] is all done." Babbitt approached the mattress, grabbed a pillow, placed it over the man's head, and said, "We got this guy good." Rosado told Richard that he was "involved" in the matter, and that he had better not tell anyone. The body was wrapped in a blanket, Richard was handed a shovel, and Babbitt and Rosado began carrying the body into the woods near the motel. When the body was dropped to the ground, Richard heard a noise that sounded "like air" coming from the body. Rosado dug a hole and instructed Richard and Babbitt to gather brush to put over the hole. The body was put in the hole and covered. At a later date, Babbitt saw Richard at the motel and told him to "keep [his] mouth shut."²

Over the next several weeks, Babbitt and Rosado repeatedly told friends and neighbors various elements of the following story: the two men had beaten Greene, killed him, and buried his body in the woods near the motel.³ In late February, the police learned of one such remark. Two officers drove to Secaucus, New Jersey, on February 28 to interview Babbitt. On finding Babbitt, they advised him of his rights but did not arrest him. Babbitt initially disclaimed knowledge of the murder or of Greene and denied having been involved in the fight in front of rooms 9 and 10. Then Babbitt claimed that Rosado had beaten Greene and buried his body behind the motel. Later in the conversation, Babbitt said that he had followed as Rosado carried the body to the woods and had watched Rosado dig the grave. Babbitt did not acknowledge taking part in these acts.

Babbitt agreed to return to Attleboro to show police where the body was buried. On March 1, Babbitt made another statement to police in which he admitted to assisting in covering the grave and to discarding the blanket in which the body had been wrapped. Babbitt said that he had heard "a gasp or a moan" when the body was placed in the grave. He described the sound as "a last breath." Babbitt also said that Rosado had repeatedly told him that he hoped they would not get caught, and that he had responded by telling Rosado to shut up.

The police found Greene's body on March 1. A medical examiner who examined the body concluded that Greene's death was caused by blunt trauma to the head. 2. Discussion. a. The testimony challenged on appeal. On appeal, Babbitt challenges the admission of testimony by five witnesses as to statements that Rosado made in Babbitt's presence. Babbitt objected at trial to the testimony of only the second and fifth witnesses. We briefly review the testimony.

(1) David Maloney. David Maloney, a friend of Rosado, saw Rosado and another man on a bus during the last week of February. Laughing, Rosado boasted that he had beaten a black man badly for several days, killed him, and buried him behind the hotel. Rosado complained that his companion had told "about a hundred people" about the killing and expressed surprise that they had not yet been arrested. To Maloney, Rosado's companion seemed "very down"; he was drinking from a brown paper bag. Throughout Rosado's conversation with Maloney, the second man said nothing.

At the trial, Maloney identified Babbitt as Rosado's companion on the bus.

(2) Richard Dolan. A week after the party, Dolan returned to the motel. He saw both Babbitt and Rosado. In Babbitt's presence, Rosado told Dolan, "Yeah, we killed the [racial epithet].... We killed the [racial epithet] over next-door."

Babbitt's trial counsel objected to this testimony without specifying a basis for his objection. The objection was overruled. On redirect examination, Dolan reaffirmed that Babbitt had been present when Rosado had made the statement. Babbitt's trial counsel did not object. On appeal Babbitt challenges only Dolan's direct testimony.

(3) Michael Hayward. Two weeks after the party, Hayward visited the motel with Bilsborough. In Babbitt's presence, Rosado told Hayward and Bilsborough that the two men had beaten the man next door and buried him in the woods. They had tried to suffocate the victim, Rosado said; when that proved ineffective, they resorted to beating him. Babbitt gestured to Rosado to keep quiet throughout the conversation. Babbitt and Rosado laughed at times during the conversation.

(4) Mark Bilsborough. The day after the party, Bilsborough visited Babbitt and Rosado in room 9. He saw two shoes and a belt outside room 10. The doorway was open, and Bilsborough looked inside. Greene "looked like he was dead as a doornail"; "[h]e was slipped down on the side of his bed with his head down," "leaning his back against the bed with his head slumped down, like someone placed him right there." Greene's shirt had been removed. Bilsborough went into room 10 and found Babbitt and Rosado. Rosado told Bilsborough that the "guy took the message; that they beat him up and that he had the message to pack up and leave." Babbitt and Rosado each took part in telling their story of what had happened the night before: Greene had tried to barricade his door, Rosado and Babbitt had forced their way in, Rosado had grabbed Greene by the neck and the head, Greene had responded by making an insulting gesture, and Babbitt had retaliated by grabbing Greene's finger and bending it back to the wrist.

(5) Constance Robinson. Constance Robinson lived at the motel with her son. Constance Robinson testified that Babbitt and Rosado entered her room on February 12. Rosado held a knife to her son's throat and asked him if he thought Rosado was capable of killing someone. He replied affirmatively. Rosado said that he and his "bro" had "already killed" a black person and that they were not afraid to kill again. Turning to Babbitt, Rosado said, "Right, bro?" Babbitt said, "Right, bro," and smiled. Robinson told Rosado that there was no statute of limitations on murder. Babbitt said that "he wasn't going to go to prison for nobody." Babbitt told Rosado to be quiet at various points during the conversation.

Later that day, Robinson visited room 9. Babbitt was making racist statements, including "Heil Hitler," and "white supremacy rules." Robinson told Babbitt that her former husband was an African-American. Rosado said that he wanted to know where her ex-husband lived because they wanted to kill him as well. Babbitt laughed. He continued to tell Rosado to be quiet.

Citing Bruton v. United States, 391 U.S. 123 (1968), Babbitt's counsel objected...